report

Transcription

report

Congressional Oversight Panel
September 9,
2009
SEPTEMBER
OVERSIGHT REPORT*
The Use of TARP Funds in the Support and
Reorganization of the* Domestic Automotive
Industry
REPORT
*Submitted under Section 125(b)(1) of Title 1 of the Emergency Economic
Stabilization Act of 2008, Pub. L. No. 110-343
Table of Contents
Executive Summary .............................................................................................................3
Section One: The Use of TARP Funds in the Support and Reorganization
of the Domestic Automotive Industry..........................................................6
A. Introduction ..............................................................................................................6
B. What Happened? The Sequence of Events .............................................................7
C. The Impact of the Reorganizations: Who Got What? ............................................23
D. Treasury‟s Objectives: What was Treasury Trying to Achieve? ...........................32
E. Bankruptcy Law Aspects of the Automotive Company Rescues ..........................40
F. Following the Money .............................................................................................53
G. Issues Raised ..........................................................................................................70
H. Conclusion and Recommendations ......................................................................110
Annexes:
A. Professor Adler ....................................................................................................116
B. Professor Lubben .................................................................................................128
Section Two: Additional Views .......................................................................................148
A. Congressman Jeb Hensarling ...............................................................................148
Annex to Congressman Jeb Hensarling‟s Additional Views .....................................182
1
Section Three: Correspondence with Treasury Update ...................................................193
Section Four: TARP Updates since Last Report..............................................................194
Section Five: Oversight Activities ...................................................................................213
Section Six: About the Congressional Oversight Panel ...................................................214
Appendices:
APPENDIX I: LETTER FROM CHAIR ELIZABETH WARREN TO
SECRETARY TIMOTHY GEITHNER AND CHAIRMAN BEN
BERNANKE, RE: CONFIDENTIAL MEMORANDA, DATED JULY 20,
2009............................................................................................................................216
APPENDIX II: LETTER FROM CHAIR ELIZABETH WARREN TO
SECRETARY TIMOTHY GEITHNER, RE: TEMPORARY GUARANTEE
PROGRAM FOR MONEY MARKET FUNDS, DATED MAY 26, 2009 ..............219
2
Executive Summary*
Even before last year‟s financial crisis, the American automotive industry was facing
severe strains. Foreign competitors had steadily eroded its market share. Rising fuel prices had
softened demand for its products. Legacy costs had constrained its flexibility. And a series of
poor strategic decisions by its executives had compounded these problems. In 2008, U.S.
automotive sales fell to a 26-year low.
The financial crisis weakened American automakers even further, constricting credit and
reducing demand, turning their long-term slump into an acute crisis. By early December,
Chrysler and General Motors (GM) could no longer secure the credit they needed to conduct
their day-to-day operations. Unless they could raise billions of dollars in new financing, they
faced collapse – a potentially crippling blow to the American economy that Treasury estimated
would eliminate nearly 1.1 million jobs.
Facing this prospect, the administration of former President George W. Bush stepped in
and provided short-term financing to the automotive companies, using funds from the Troubled
Asset Relief Program (TARP). The policy was later continued by the Obama Administration,
which supplied additional loans that were used to finance the bankruptcy reorganizations of
Chrysler and GM.
Treasury‟s financial assistance to the automotive industry differed significantly from its
assistance to the banking industry. Assistance given to the banks has carried less stringent
conditions, and money was made readily available without a review of business plans or without
any demands that shareholders forfeit their stake in the company or top management forfeit their
jobs. By contrast, Treasury was a tough negotiator as it invested taxpayer funds in the
automotive industry. The bulk of the funds were available only after the companies had filed for
bankruptcy, wiping out their old shareholders, cutting their labor costs, reducing their debt
obligations and replacing some top management. The decision to provide financing for the
automotive industry raises a number of questions about TARP and its use, including the decision
to fund the automotive industry, the government as tough negotiator, the conflicts of interest that
arise when the government owns a substantial stake in a private company, and the exit strategy.
This report addresses each of these issues.
The decision to intervene also raises critical questions about Treasury‟s objectives. Was
the primary purpose of this intervention to provide bridge funding to the automakers, with the
expectation that these were viable companies that could eventually repay taxpayers in full? Was
it to prevent an uncontrolled liquidation because such a prospect posed a systemic risk to the
financial markets and the overall economy? Was it to advance broader policy goals, such as
*
The Panel adopted this report with a 2-1 vote on September 8, 2009. Rep. Jeb Hensarling voted against
the report. Additional views are available in Section Two of this report.
3
improving fuel efficiency or sustaining American manufacturing and jobs? Or was it some
combination of these? To date, Treasury‟s public statements provide little clarity, as each of
these objectives has been cited at various times.
Whether Treasury had the legal authority to use TARP funds to bail out Chrysler and GM
is the subject of considerable debate. There was, however, enough ambiguity in the TARP
legislation, and there continues to be ambiguity about congressional intent, so that Treasury has
faced no effective challenge to its decision to use TARP funds for this purpose.
Given the size of the automotive companies, the historical importance of the industry,
and the government‟s extensive engagement in this process, the bankruptcy proceedings were
highly visible and invited much public scrutiny. Those creditors who saw their investments in
the company sharply reduced in bankruptcy raised vigorous objections to the role of the
government as tough negotiator. The Panel asked two experts on bankruptcy law, Professor
Barry Adler of New York University and Professor Stephen Lubben of Seton Hall University, to
provide the Panel with an analysis of the bankruptcy process.
When all had settled, substantial changes had been made in the businesses, shareholders
had been wiped out, many creditors had taken substantial losses, and the American taxpayers
emerged as the owners of 10 percent and 61 percent of post-bankruptcy Chrysler and GM,
respectively.
Although taxpayers may recover some portion of their investment in Chrysler and GM, it
is unlikely they will recover the entire amount. The estimates of loss vary. Treasury estimates
that approximately $23 billion of the initial loans made will be subject to “much lower
recoveries.” Approximately $5.4 billion of the loans extended to the old Chrysler company are
highly unlikely to be recovered. The Congressional Budget Office earlier calculated a subsidy
rate of 73 percent for all automotive industry support under TARP and recently raised its
estimate of the cost of that assistance by approximately $40 billion over the previous estimate.
Because Treasury has not clearly articulated its objectives, it is impossible to know if this
prospect, indeed, represents a failure of Treasury‟s strategy.
The government‟s emergence as the part-owner of a large, private company raises critical
oversight questions. At times, in the ordinary course of business, natural tensions arise between
the interests of a corporation‟s management team, its shareholders and the directors who
represent them, its creditors, its workers, its regulators, and, and its customers. The
government‟s investment in the American automotive industry has added a new complication, as
the American public now directly or indirectly participates in many of these roles. This report
explores the conflict between possibly competing objectives, including preventing significant job
losses across the nation in the midst of an economic crisis against maximizing shareholder
profits; changing the culture of these automotive companies against not interfering with day-today management; and public accountability against normal commercial operations. The Panel
assesses how effectively Treasury has navigated these and other concerns, including its role in
the bankruptcy process.
4
The Panel recommends that, to mitigate the potential conflicts of interest inherent in
owning Chrysler and GM shares, Treasury should take exceptional care to explain its decisionmaking and provide a full, transparent picture of its actions. The Panel recommends that
Treasury use its role as a significant shareholder in Chrysler and GM to ensure that these
companies fully disclose their financial status and that the compensation of their executives is
aligned to clear measures of long-term success. To limit the impact of conflicts of interest and to
facilitate an effective exit strategy, Treasury should also consider placing its Chrysler and GM
shares in an independent trust that would be insulated from political pressure and government
interference.
Finally, because of the unprecedented nature of the assistance provided to the automotive
industry, the Panel also recommends that Treasury provide its legal analysis justifying the use of
TARP funds for this purpose. This analysis will inform policymakers‟ and taxpayers‟
understanding of the potential for Treasury to use its authority to assist other struggling
industries.
Treasury must be clearer, more transparent, and more accountable in its TARP dealings,
providing the American public with the information needed to determine the effectiveness of
Treasury‟s efforts.
5
Section One: The Use of TARP Funds in the Support and
Reorganization of the Domestic Automotive Industry
A. Introduction
Beginning in December 2008, Treasury broadened its allocation of funding under the
Troubled Asset Relief Program (TARP) by using $85 billion in TARP funds to support the
domestic automotive industry.1 In this report, the Panel examines several key considerations
relating to these disbursements, including: Treasury‟s justification for extending TARP funds to
the automotive sector, how exactly this money has been used, and whether Treasury has properly
and publicly articulated its objectives and taken action in furtherance of those objectives. This
report also examines Treasury‟s role in the bankruptcy of Chrysler Holding LLC (Chrysler) and
General Motors Corporation (GM), how Treasury plans to protect taxpayers‟ interests while the
government controls these companies, and how Treasury intends to maximize taxpayers‟ returns
when the government divests itself of ownership.
The Emergency Economic Stabilization Act of 2008 (EESA),2 which governs Treasury‟s
administration of TARP, specifically authorizes the Secretary of the Treasury “to establish the
Troubled Asset Relief Program…to purchase, and to make and fund commitments to purchase,
troubled assets from any financial institution.”3 EESA also established the Panel to oversee
Treasury‟s administration of the program. According to its mandate, the Panel is obliged to
review and oversee the Secretary of the Treasury‟s use of his authority under TARP, the impact
of TARP on the financial markets and financial institutions, the extent to which information
made available on TARP transactions has contributed to market transparency, and TARP‟s
effectiveness in minimizing long-term costs and maximizing benefits to the taxpayers.
While these oversight objectives do not fit as neatly into an examination of Treasury‟s
involvement in the automotive industry as they do with respect to its involvement in the financial
industry, if Treasury is of the understanding that it has the authority to use TARP funds to assist
the automotive industry, then the Panel has the obligation to “follow the money” and determine
whether Treasury used that money in furtherance of the stated objectives of TARP.
1
U.S. Department of Treasury, TARP Transaction Report (Aug. 18, 2009) (online at
www.financialstability.gov/docs/transaction-reports/transactions-report_08182009.pdf) (hereinafter “August 18
Transactions Report”).
2
Emergency Economic Stablization Act of 2008 (EESA), Pub. L. No. 110-343 (hereinafter “EESA”).
3
EESA § 101(a)(1).
6
B. What Happened? The Sequence of Events
Despite increasing competition from abroad, the U.S. automotive industry continues to
account for a significant portion of America‟s economic output. As recently as early 2004, the
industry produced almost four percent of this nation‟s gross domestic product.4 Even though the
industry lost approximately 435,000 jobs between 2000 and 2008, approximately 880,000 people
continued to be employed in the industry in 2008.5 This represents more than 6.5 percent of the
total manufacturing jobs in the United States.6 Notably, the American steel industry shipped
almost 13 percent of its output to automotive manufacturers in 2008.7
However, in the fall of 2008, the combination of rising gasoline prices, tightening credit
markets, eroding consumer confidence, high unemployment, and discretionary spending
concerns prompted a significant downturn in automobile sales in the United States and abroad,
with 2008 sales 18 percent lower than the previous year‟s.8 U.S. automobile sales fell to a 26year low, from a high point of 17.3 million cars and light trucks in 2000 to 13.2 million in 2008.
Sales fell much further in the first half of 2009 as a result of deteriorating economic conditions
and are projected to be roughly 10.3 million units for 2009 and 11.1 million in 2010.9 The
tightened credit market was especially significant because 90 percent of consumers finance
automobile purchases through loans, either directly from the manufacturers‟ financing arms or
through third-party financial institutions, all of which experienced increased difficulty in raising
capital to finance the loans.10 The particularly weak condition of the financing arms of Chrysler
and GM – Chrysler Financial and GMAC, respectively – exacerbated the manufacturers‟
plummeting sales as the credit markets seized up.11
4
Bureau of Economic Analysis, National Income and Product Accounts Table: Table 1.5.5 – Gross
Domestic Product, Expanded Detail (Aug. 27, 2009) (online at
www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=35&ViewSeries=NO&Java=no&Request3Place=N
&3Place=N&FromView=YES&Freq=Year&FirstYear=1990&LastYear=2008&3Place=N&Update=Update&JavaB
ox=no) (hereinafter “National Income Table”).
5
Bureau of Labor Statistics, Automotive Industry: Employment, Earnings, and Hours (accessed on Aug.
21, 2009) (online at www.bls.gov/iag/tgs/iagauto.htm) (hereinafter “Employment, Earnings, and Hours Report”).
6
Id.
7
Center for Automotive Research, Sean McAlinden, Kim Hill, and Bernard Swiecki, Economic
Contribution of the Automotive Industry to the U.S. Economy – An Update, at 21-25 (Fall 2003) (online at
www.cargroup.org/pdfs/Alliance-Final.pdf).
8
IHS Global Insights, U.S. Executive Summary at 9 (Aug. 2009) (hereinafter “U.S. Executive Summary”).
9
Id. at 2.
10
House Committee on the Judiciary, Administrative Law Subcommittee, Testimony of Ron Bloom, Senior
Advisor at the U.S. Department of Treasury, Ramifications of Automotive Industry Bankruptcies, Part II, 111th
Cong., at 1 (July 21, 2009) (online at judiciary.house.gov/hearings/pdf/Bloom090721.pdf) (hereinafter
“Ramifications of Automotive Industry Bankruptcies Part II”).
11
Id. at 19. The decline arose in no small part due to a history of actual and consumer-perceived inferior
product quality relative to foreign competitors. U.S. Department of Treasury, Chrysler February 17 Plan:
7
In December 2008, Chrysler and GM faced a crippling lack of access to credit due to the
global financial crisis.12 Their CEOs appeared before Congress and appealed for government
assistance to help them stay afloat.13 The House of Representatives responded on December 10
by passing legislation to provide a total of $14 billion in loans to the two companies, allocating
the funds from a previously enacted Department of Energy program for advanced vehicle
technology.14 The bill was blocked in the Senate on December 11, which effectively prevented
the legislation from being signed into law.15 The Bush Administration then announced that it
would consider making TARP funds available to the automotive industry – a reversal of its
previous stance that automakers were ineligible to receive TARP assistance – and on December
19 announced that Chrysler and GM would both receive TARP funds.16 The White House Fact
Sheet accompanying the announcement estimated that “the direct costs of American automakers
failing and laying off their workers in the near term would result in a more than one percent
reduction in real GDP growth and about 1.1 million workers losing their jobs, including workers
for automotive suppliers and dealers.”17
Under the Automobile Industry Financing Program (AIFP) that was announced on
December 19, Chrysler and GM received bridge loans of $4 billion and $13.4 billion,
respectively, under separate loan and security agreements.18 The GM loan and security
Determination of Viability, at 3 (Mar. 30, 2009) (online at www.financialstability.gov/docs/AIFP/Chrysler-ViabilityAssessment.pdf) (hereinafter “Chrysler February 17 Viability Plan”).
12
Senate Committee on Banking, Housing, and Urban Affairs, Testimony of Chrysler Chairman and CEO
Richard Nardelli, State of the Domestic Automobile Industry: Part II, 110th Cong., at 2 (Dec. 4, 2008) (online at
banking.senate.gov/public/index.cfm?FuseAction=Hearings.Testimony&Hearing_ID=299be20f-5e40-4c5f-89ee2ade064d4226&Witness_ID=45d1bc44-ac76-4539-be69-32e09c50b3b8) (hereinafter “Nardelli Senate Testimony”).
13
Id. The President and Chief Executive Officer of Ford Motor Company also testified at this hearing.
14
H.R. 7321, Auto Industry Financing and Restructuring Act, 110th Cong (hereinafter “H.R. 7321”).
15
The failure to invoke cloture on the proposed legislation by a vote of 52 to 35. U.S. Senate, Roll Call
Vote on the Motion to Invoke Cloture on the Motion to Proceed to Consider H.R. 7005 (online at
www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00215).
16
White House Office of the Press Secretary, President Bush Discusses Administration‟s Plan to Assist
Automakers (Dec. 19, 2008) (online at
georgewbushwhitehouse.archives.gov/news/releases/2008/12/20081219.html) (hereinafter “Bush Plan to Assist
Automakers”).
17
White House Office of the Press Secretary, Fact Sheet: Financing Assistance to Facilitate the
Restructuring of Auto Manufacturers to Attain Financial Viability (Dec. 19, 2008) (online at georgewbushwhitehouse.archives.gov/news/releases/2008/12/20081219-6.html) (hereinafter “Auto Viability Financing FactSheet”).
18
The loans were documented in two separate documents released by Treasury, both entitled Loan and
Security Agreement, on December 31, 2008. In total, up to $13.4 billion was made incrementally available to GM
(with $4 billion available upon the effective date of December 31, 2008) in the first TARP financing. In total, $4
billion was made available to Chrysler on the same effective date. Each agreement was for a secured term loan
facility with a first lien on all unencumbered assets of each company. Treasury accepted junior liens on encumbered
assets. The loans expire December 30, 2011. U.S. Department of the Treasury, Loan and Security Agreement [GM]
(Dec. 31, 2008) (online at
www.financialstability.gov/docs/agreements/GM%20Agreement%20Dated%2031%20December%202008.pdf)
8
agreement was signed on December 31, 2008 and GM drew the first $4 billion total loan amount
on that date. The Chrysler loan and security agreement was signed on January 2, 2009, and
Chrysler drew the entire $4 billion loan amount on that date. On January 16, 2009, GM drew an
additional $5.4 billion installment.19 These three loan installments used the last of the $350
billion first “tranche” of TARP under EESA. Beyond that, the President had to transmit to
Congress a written report of the plan to exercise the authority to use the remaining half of the
funding, after which Congress had 15 calendar days to enact a joint resolution of disapproval.
Congress failed to pass the disapproval resolution for the second tranche of TARP funds on
January 15, and GM then drew a third installment of $4 billion on February 17, 2009.20 The
term sheets for both companies established a loan interest rate of LIBOR plus three percent, with
an additional five percent penalty on any amount in default.21
The AIFP loans were extended to Chrysler and GM under terms and conditions specified
in the loan agreements.22 The most important condition required each company to demonstrate
that the assistance would allow it to achieve “financial viability,” which was defined as “positive
net value, taking into account all current and future costs, and [the ability to] fully repay the
government loan.”23 Both companies were required to submit viability plans designed “to
achieve and sustain [their] long-term viability, international competitiveness and energy
efficiency.”24 Key to such viability would be “meaningful concessions from all involved in the
automotive industry.”25 The loans also imposed conditions and covenants related to their
operations, expenditures, and reporting thereof to the President‟s designee, including divestiture
(hereinafter “GM Loan and Security Agreement”); U.S. Department of the Treasury, Loan and Security Agreement
[Chrysler] (Dec. 31, 2008) (online at www.financialstability.gov/docs/agreements/Chysler_12312008.pdf)
(hereinafter “Chrysler Loan and Security Agreement”).
19
U.S. Department of Treasury, Fourth Tranche Report to Congress (Jan. 7, 2009) (online at
www.financialstability.gov/docs/TrancheReports/Fourth-Tranche-Report.pdf).
20
U.S. Department of Treasury, Section 105(a) Troubled Asset Relief Program Report to Congress for the
period February 1, 2009 to February 28, 2009 (Mar. 6, 2009) (online at
www.financialstability.gov/docs/105CongressionalReports/105aReport_03062009.pdf) (hereinafter “Fourth Tranche
Report”).
21
GM Loan and Security Agreement, supra note 18; Chrylser Loan and Security Agreement, supra note 18.
22
Auto Viability Financing Fact-Sheet, supra note 17.
23
Auto Viability Financing Fact-Sheet, supra note 17.
24
U.S. Department of the Treasury, Indicative Summary of Terms for Secured Term Loan Facility [GM], at
5 (Dec. 19, 2008) (online at www.ustreas.gov/press/releases/reports/gm%20final%20term%20&%20appendix.pdf)
(hereinafter “GM Secured Term Loan Facility Summary”); U.S. Department of the Treasury, Indicative Summary of
Terms for Secured Term Loan Facility [Chrysler], at 5 (Dec. 19, 2008) (online at
www.ustreas.gov/press/releases/reports/chrysler%20final%20term%20&%20appendix.pdf) (hereinafter “Chrysler
Secured Term Loan Facility Summary”).
25
Bush Plan to Assist Automakers, supra note 16.
9
of interests in all private passenger aircraft and nonpayment of unapproved bonuses to certain
executives.26
Both companies submitted plans demonstrating their financial viability in February 2009.
GM‟s plan called for reductions in plants, dealers, employees, and nameplates (Saturn, Saab and
Hummer would be eliminated).27 Chrysler‟s plan presented three scenarios:
1. Chrysler could continue as a stand-alone company with the help of $11 billion in loans
from the government;
2. Chrysler could pursue a non-binding agreement already signed with the Italian automaker
Fiat S.p.A. (Fiat) and, with additional government assistance, aim to sell more fuel
efficient cars to a wider range of markets; or
3. Chrysler could file for bankruptcy and embark on an orderly wind down of the
company.28
On February 15, 2009, President Obama announced the creation of an interagency
Presidential Task Force on the Auto Industry (Task Force), that would assume responsibility for
reviewing the Chrysler and GM viability plans. The Task Force is co-chaired by Treasury
Secretary Timothy Geithner and Director of the National Economic Council Lawrence Summers
and includes a number of ex-officio designees29 and government staffers.30 In addition, the
President named two advisors to lead the Treasury auto team,31 which had responsibility for
evaluating the companies‟ viability plans and negotiating the terms of any further assistance:
26
GM Secured Term Loan Facility Summary, supra note 24 at 3-4; Chrysler Secured Term Loan Facility
Summary, supra note 24 at 3-4.
27
General Motors Corporation, 2009-2014 Restructuring Plan (Feb. 17, 2009) (online at
media.gm.com/us/gm/en/news/govt/docs/plan.pdf) (hereinafter “GM Restructuring Plan).
28
Chrysler Group LLC, Chrysler Restructuring Plan for Long-Term Viability (Feb. 17, 2009) (online at
www.media.chrysler.com/dcxms/assets/attachments/Restructuring_Plan_for_LongTerm_Viability.pdf) (hereinafter
“Chrysler Restructuring Plan”).
29
Secretary of Transportation, Secretary of Commerce, Secretary of Labor, Secretary of Energy, Chair of
President‟s Council of Economic Advisors, Director of the Office of Management and Budget, Environmental
Protection Agency Administrator, Director of the White House Office of Energy and Climate Change.
30
Diana Farrell, Deputy Director, National Economic Council; Gene Sperling, Counselor to the Secretary
of the Treasury; Jared Bernstein, Chief Economist to Vice President Biden; Edward Montgomery, then Senior
Advisor, Department of Labor, Lisa Heinzerling, Senior Climate Counsel to the EPA Administrator; Austan
Goolsbee, Staff Director and Chief Economist of the Economic Recovery Advisory Board; Dan Utech, Senior
Advisor to the Secretary of Energy; Heather Zichal, Deputy Director, White House Office of Energy and Climate
Change; Joan DeBoer, Chief of Staff, Department of Transportation; Rick Wade, Senior Advisor, Department of
Commerce.
31
The missions and personnel of the Task Force and Treasury auto team – a joint Treasury-National
Economic Council team which staffs the Task Force – overlap considerably, therefore these entities are often cited
interchangeably. The auto team‟s analysis of the viability plans is discussed in more detail in Sections D and G
below.
10
Ron Bloom, a former investment banker and advisor to the president of the United Steelworkers
union, and Steven Rattner, the co-founder of the Quadrangle Group, a private equity firm. (Mr.
Rattner subsequently left the Treasury auto team on July 13, 2009, leaving Mr. Bloom as the
auto team‟s head.) The auto team reports to the Task Force and its co-chairs, who then report up
to the President.
President Obama announced the results of the Treasury auto team‟s review on March 30.
According to the auto team, the most important indicator of the companies‟ viability was their
ability to “generate positive cash flow and earn an adequate return on capital over the course of a
normal business cycle.”32 In making the individual determinations, the auto team generally
assumed no significant changes in the operations of the companies‟ competitors, although they
ran various scenarios to take into account changes in the competitive environment.
The auto team found GM‟s plan “not viable as it‟s currently structured,”33 chiefly
because it relied on overly optimistic assumptions about the company and the economy‟s
recovery. The auto team focused on:

GM‟s consistently decreasing market share over the past 30 years, which the auto team
calculated at a 0.7 percent annual decrease – much greater than GM‟s assumption of 0.3
percent annual decrease going forward to 2014;

consumer perception of GM‟s poor product quality compared to competitors;

GM‟s large network of underperforming dealers;

GM‟s costly and unprofitable European operations;

GM‟s vulnerability to higher energy costs due to its disproportionate profit share from
SUVs; and

increasing legacy liabilities that would require GM to sell almost a million more cars in
both 2013 and 2014.
In short, GM had too much catching-up to do, even without accounting for the sunk costs
of restructuring, to generate positive cash flow over the projection period. GM was therefore
asked to submit a “substantially more aggressive plan” and was provided an additional 60 days
32
Chrysler February 17 Viability Plan, supra note 11.
33
Chrysler February 17 Viability Plan, supra note 11.
11
of working capital.34 Between March 30 and May 30, GM received another $6.36 billion in
loans (including $361 million for the warranty program).35
In its analysis, the auto team found that Chrysler had an even poorer outlook than GM
because of problems with scale, quality, product mix, lack of manufacturing flexibility, and
geographic over-concentration. The auto team concluded Chrysler could succeed only if it
developed a partnership with another automotive company.36 Chrysler was offered working
capital for 30 more days while it sought an agreement with Fiat.37 Between March 30 and April
34
U.S. Department of Treasury, GM February 17 Plan: Determination of Viability (Mar. 30, 2009) (online
at www.whitehouse.gov/assets/documents/GM_Viability_Assessment.pdf) (hereinafter “GM February 17 Viability
Plan”).
35
Aug. 18 Transactions Report, supra note 1 at 16.
36
In fact, both Chrysler and GM had been contemplating mergers with other automotive companies for
over a year. The contraction in domestic auto manufacturing that foreshadowed the economic crisis led Chrysler
and GM to pursue possible strategic changes including mergers, the creation of partnerships, and sales. Chrysler,
concerned with its viability, reached out to Nissan-Renault in the spring of 2007 and continued discussion on a wide
range of possible scenarios until term sheets were exchanged in July 2008. Declaration of Thomas W. LaSorda, 1112 (Apr. 30, 2009), In Re Chrysler LLC, S.D.N.Y. (No.09 B 50002 (AJG)) (online at
chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f675-41bf-a79b-e1b2cb9c18f0&l=1) (hereinafter
“Thomas LaSorda Declaration”). Ultimately, only joint production agreements were signed and negotiations for a
union between Chrysler and Nissan collapsed. Davis Welch, Behind the Chrysler-Nissan Deal, Business Week
(April 14, 2008) (online at
www.businessweek.com/bwdaily/dnflash/content/apr2008/db20080414_164988.htm?campaign_id=rss_daily)
(hereinafter “Behind the Chrysler-Nissan Deal”). Chrysler executives then approached General Motors in August
2008. Some industry insiders believed that by folding Chrysler into GM, the proposed company would have easier
access to the capital markets and would benefit from the increased market share. Declaration of J. Stephen Worth,
85-86 (May 31, 2009), In Re General Motors Corp., S.D.N.Y. (No. 09-50026 (REG)) (online at
docs.motorsliquidationdocket.com/pdflib/425_50026.pdf) (hereinafter “Stephen Worth Declaration”). GM
suspended the negotiations in November 2008 due to the lack of funding for the proposed arrangement and the
company‟s impending liquidity crisis. After accepting the initial assistance from the Treasury, Chrysler contacted
Nissan and GM in hopes of reviving negotiations, but both carmakers refused. These unsuccessful attempts,
coupled with the lack of adequate funding in the capital markets and the rapidly deteriorating condition of the
domestic automotive industry, led Chrysler and GM to seek assistance from the United States government. After
receiving the initial bridge loans from the Bush Administration, Chrysler again reached out to GM in early January,
but GM remained uninterested in further merger discussions. Thomas LaSorda Declaration at 13-14. The auto
team has told the Panel that it did not discourage a merger between GM and Chrysler, that “[e]ach company made its
own determination to pursue a future independent of the other.” Congressional Oversight Panel, Questions for the
Record from the Congressional Oversight Panel at the Congressional Oversight Panel Hearing on July 27, 2009,
Questions for Ron Bloom, Senior Advisor, U.S. Department of the Treasury, at 8 (July 27, 2009) and Congressional
Oversight Panel, Ron Bloom Responses, Congressional Oversight Panel Hearing Transcript on July 27, 2009
(collectively, hereinafter “Ron Bloom COP Testimony”).
37
Chrysler had begun discussions with Fiat a year earlier, in March 2008, as part of its talks with other car
companies about a partnership. By January 2009, “no party except Fiat emerged as a viable and willing partner.”
Declaration of Thomas LaSorda, supra note 36. Chrysler and Fiat agreed to an initial term sheet that became one of
the options in the restructuring plan that Chrysler submitted to Treasury in February 2009. Chrysler‟s plan also
included an option in which, with concessions and additional government support, it could have been viable as a
stand-alone company. Declaration of Robert Manzo, 30 (Apr. 30, 2009) In Re Chrysler LLC, S.D.N.Y. (No. 09 B
50002 (AJG)) (online at chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f675-41bf-a79be1b2cb9c18f0&l=1) (hereinafter “Robert Manzo Declaration”); Chrysler Restructring Plan, supra note 28. The
auto team disagreed with the latter option, and informed Chrysler that it would only provide financing if Chrysler
formed an alliance with Fiat – the only potential partner willing to form an alliance. It stated that:
12
30, Treasury agreed to commit up to $280 million in loans to Chrysler for the warranty program
(no working capital loans were advanced).38
The auto team emphasized that, while Chrysler and GM presented different issues and
problems, in each case, “their best chance of success may well require utilizing the bankruptcy
code in a quick and surgical way.”39 In the Administration‟s vision, this would not entail
liquidation or a “traditional,” long, drawn-out bankruptcy, but rather a “structured” bankruptcy
as a tool to “make it easier for Chrysler and General Motors to clear away old liabilities.”40
1. New Chrysler
Chrysler was unable to complete a restructuring deal by the April 30 deadline.41 A group
of investors holding 30 percent of Chrysler‟s $6.9 billion in secured debt would not accept
Treasury‟s $2 billion offer in exchange for the debt.42 Chrysler filed for bankruptcy on April 30
under Chapter 11 of the U.S. Bankruptcy Code (the Code).43 Forty-two days later the sale of the
majority of its assets to a newly formed entity, Chrysler Group LLC (New Chrysler), under
Section 363 of Chapter 11 of the Code, closed.
The technical details of the bankruptcy process and the precise manner of disposition of
assets of Chrysler (often referred to as Old Chrysler, for clarity) and ownership of New Chrysler
are discussed in more detail below.44 In essence, however, the arrangements, set out in a master
transaction agreement,45 were as follows. The secured creditors had to accept the original offer
[Treasury] will provide Chrysler with working capital for 30 days to conclude a definitive
agreement with Fiat and secure the support of necessary stakeholders. If successful, the
government will consider investing up to the additional $6 billion requested by Chrysler to help
this partnership succeed. If an agreement is not reached, the government will not invest any
additional taxpayer funds in Chrysler.
White House, Obama Administration New Path to Viability for GM & Chrysler (Mar. 30, 2009) (online at
www.whitehouse.gov/assets/documents/Fact_Sheet_GM_Chrysler_FIN.pdf) (hereinafter “New Path to Viability for
GM & Chrysler”).
38
Aug. 18 Transactions Report, supra note 1.
39
New Path to Viability for GM & Chrysler, supra note 37.
40
41
White House Office of the Press Secretary, Obama Administration Auto Restructuring Initiative (April
30, 2009) (www.whitehouse.gov/the_press_office/Obama-Administration-Auto-Restructuring-Initiative)
(hereinafter “Chrysler Release”).
42
Id.
43
Id.
44
See Section C for a discussion of the precise disposition of assets, and Section E for a discussion of the
Section 363 sale process.
45
Master Transaction Agreement among Fiat SpA, NewCarCo. Acquisition LLC, Chrysler LLC, and the
Other Sellers identified therein, Dated April 30, 2009 (May 12, 2009), In Re Chrysler LLC, S.D.N.Y. (No. 09 B
50002 (AJG) (online at chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f675-41bf-a79be1b2cb9c18f0&l=1) (hereinafter “Chrysler Master Transaction Agreement”).
13
of $2 billion. At the time of filing, Chrysler was privately owned by the private equity firm
Cerberus Capital Management L.P. (Cerberus) and the automobile company Daimler AG
(Daimler). Daimler, the minority shareholder, agreed to waive its share of Chrysler‟s $2 billion
second lien debt, give up its 19 percent equity interest in Chrysler, and settle its pension guaranty
obligation by agreeing to pay $600 million to Chrysler‟s pension funds. Cerberus agreed to
waive its share of second lien debt and forfeit its equity stake in Chrysler. Cerberus also agreed
to transfer its ownership of the Chrysler headquarters in Auburn Hills, Michigan to New
Chrysler. Finally, Cerberus pledged to contribute a claim it had against Daimler to assist in the
Daimler pension guaranty settlement.
Treasury provided a total of $8.5 billion in working capital and exit financing to facilitate
the deal.46 The U.S. government received approximately an eight percent equity stake in New
Chrysler and the right to select the initial group of four independent directors. The governments
of Canada and Ontario47 together received two percent of the equity of New Chrysler, and
Canada received the right to select one independent director. Fiat received a 20 percent equity
stake and the right to select three directors of New Chrysler. In addition, Fiat has the right to
earn up to 15 percent in additional equity, in three tranches of five percent each, if it meets
certain performance metrics.48
As part of New Chrysler‟s purchase of Old Chrysler‟s assets, New Chrysler entered into
an agreement with the United Auto Workers (UAW) regarding the funding of the UAW Retiree
Medical Benefit Trust (the UAW Trust).49 New Chrysler agreed to fund the UAW Trust with a
46
U.S. Treasury Department, AIFP Outlays for COP (Aug. 18, 2009) (hereinafter “AIFP Outlays”).
47
During a meeting with Panel staff on July 11, 2009, Ron Bloom explained that the Canadian
governments approached the U.S. government with an offer to provide assistance to the American automotive
industry. Mr. Bloom stated his belief that the Canadian governments were concerned about the impact of the
troubled American auto makers on the Canadian economy and therefore had an interest in providing such support.
48
Chrysler Release, supra note 41.
49
By the end of the last century, Ford, Chrysler and GM found themselves faced with tens of billions of
dollars in employee health obligations. In 2007 and 2008, after it became clear to both the companies and their
unions that the state of the American automotive industry made these healthcare obligations unsustainable, the
UAW and each of the three companies ultimately entered into an agreement whereby, in exchange for significant
upfront payments principally in the form of cash and notes, healthcare obligations for retired union employees
would be transferred off the books of the companies and into a trust (an independent entity totally separate from
either the union or the automotive companies), the UAW Retiree Medical Benefits Trust, also known as a Voluntary
Employees‟ Beneficiary Association (VEBA). VEBAs are tax free entities that pay health, life, or similar benefits.
Although subject to the fiduciary requirements of the Employee Retirement Income Security Act of 1974 (ERISA),
they are not subject to ERISA funding rules as are qualified retirement plans – a company‟s funding obligation is
solely contractual. The threat of a Chapter 11 bankruptcy filing by Chrysler and GM made it clear that these
companies would not be able to meet the cash commitments they had made to the UAW Trust. As part of a new
agreement reached with representatives from both the old and new Chrysler and GM entities to enable them to
emerge from bankruptcy, the UAW agreed to significant changes to the funding structure of the UAW Trust. While
the UAW was able to get these companies to transfer cash amounts already set aside by the old Chrysler and GM
entities (about $10 billion from GM and about $1.5 billion from Chrysler), the balance of the commitments these
companies had made will no longer be paid up front in cash. Instead, New GM and New Chrysler have agreed to
contribute large portions of equity, as well as notes that will allow cash commitments to be deferred and paid over
14
$4.6 billion unsecured note and a 55 percent ownership stake in New Chrysler.50 The UAW
Trust, subject to approval of the UAW, has the right to select one independent director and no
other governance rights.51
During the bankruptcy proceedings, three Indiana state pension funds, which were
secured first lien debt holders of Chrysler, objected to the Section 363 sale to New Chrysler. The
funds argued that the sale would violate the Code by impermissibly subordinating their interests
as secured lenders and allowing assets on which they had a lien to pass free of liens to other
creditors and parties.52 Moreover, they claimed that the sale would violate bankruptcy priority
rules by paying unsecured creditors, even though secured creditors were receiving only 29 cents
on the dollar. The funds stated that they believed that Chrysler could sell the assets for more
money if they did not rush the sale, or that first lien debt holders could recover more in
liquidation. The bankruptcy court denied the funds‟ motion.53 Of the other first lien debt
holders, 92 percent had not opposed the sale.
The funds immediately began the appellate process. The Second Circuit issued a short
order ratifying the bankruptcy court‟s decision and issuing a stay to allow for the U.S. Supreme
Court‟s review. The Supreme Court denied a request for a stay of the bankruptcy
reorganization.54 Upon remand, the Second Circuit affirmed55 the bankruptcy court‟s decision.56
time, into the UAW Trust. In order to help it remain competitive and avert bankruptcy, Ford negotiated similar
alterations to its settlement with the UAW. Starting January 1, 2010, UAW retirees‟ healthcare benefits will be
funded solely by the assets in the UAW Trust, and will receive no further commitments from Old Chrysler, Old
GM or Ford. New GM and New Chrysler – as with Ford – will no longer have the healthcare obligations that have
been weighing down their predecessor companies‟ books for decades, while the healthcare benefits of the UAW‟s
retired members will still be linked to the fortunes of all three companies through the tens of billions in stock and
notes.
50
51
Form of Amended and Restated Operating Agreement of New Carco Acquisition LLC, 17 (May 12,
2009) In re Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG) (online at
“New Carco Operating Agreement”).
52
Emergency Motion of the Indiana Pensioners For Stay of Proceedings Pending Determination of Motion
to Withdraw the Reference, 2-3 (May 20, 2009) In re Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG) (online at
“Indiana Pensioners‟ Emergency Stay Motion”).
53
Order Denying Emergency Motion of the Indiana Pensioners for Stay of Proceedings Pending
Determination of Motion to Withdraw the Reference (May 20, 2009), In Re Chrysler LLC, S.D.N.Y. (No. 09 B
50002 (AJG)) (online at chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f675-41bf-a79be1b2cb9c18f0&l=1) (hereinafter “Order Denying Indiana Pensioners‟ Emergency Stay Motion”).
54
556 U.S. ___ (2009) (Per Curiam) (online at www.supremecourtus.gov/opinions/08pdf/08A1096.pdf).
55
In re Chrysler LLC, 2009 WL 2382766 (2d Cir. 2009). The funds then filed a petition for writ of
certiorari to the Supreme Court in which the sole question presented is “is whether Section 363 may freely be used
as a „side door‟ to reorganize a debtor‟s financial affairs without adherence to the creditor protections provided by
the chapter 11 plan confirmation process.” Petition for Writ of Certiorari for Petitioners Indiana State Police
15
Treasury appointed four directors to New Chrysler‟s nine-member board of directors: C.
Robert Kidder, chairman and CEO of 3Stone Advisors LLC; Douglas Steenland, former CEO of
Northwest Airlines; Scott Stuart, a partner at Sageview Capital LP, and Ronald L. Thompson,
chairman of the board of trustees for the nonprofit Teachers Insurance and Annuity Association
and College Retirement Equities Fund (TIAA/CREF).57 Mr. Kidder is chairman of the new
board.58 The Trustees of the UAW Trust appointed James J. Blanchard, a former Michigan
governor, to the board.59 As New Chrysler began operations, it was announced that Robert
Nardelli would be departing as CEO.60 Fiat CEO Sergio Marchionne subsequently replaced
him.61 The Obama Administration announced that Fiat would shake up other management in an
effort to reorganize the company.62
Chrysler announced that it would retain an “overwhelming majority” of its suppliers63
and would close 789 of its nearly 3,200 U.S. dealerships.64 These dealerships employed more
than 40,000 people.65 State governments heavily regulate the relationship between dealerships
Pension Trust, et al., at 2 No. ___ (Sept. 3, 2009) (hereinafter “Indiana Pensioners‟ Appeal”). It did, however, allude
to Treasury‟s broad definition of “financial institution.” Id. at 29.
56
In re Chrysler LLC, 405 B.R. 79, 83 (Bankr. S.D.N.Y. 2009).
57
U.S. Department of the Treasury, Treasury Department Statement on Chrysler‟s Board of Directors
Appointments (July 5, 2009) (online at www.financialstability.gov/latest/tg197.html) (hereinafter “Statements on
Chrysler Directors Appointments”).
58
Chrysler Group LLC, Formation of Chrysler Group LLC Board is Completed (July 5, 2009) (online at
www.chryslergroupllc.com/en/news/article/?lid=formation_board&year=2009&month=7) (hereinafter “Formation
of New Chrysler Board Completed”).
59
United Auto Workers, Chrysler Update: VEBA Trust Names James Blanchard to Board of Chrysler
Holding, LLC (June 10, 2009) (online at www.uaw.org/chrysler/chry12.cfm) (“VEBA Trust Director
Announcement”).
60
Letter from Robert Nardelli to Chrysler employees (Apr. 30, 2009) (online at
images.businessweek.com/extras/09/nardelli_email.pdf?chan=top+news_special+report+–
+auto+bailout+2009_special+report+–+auto+bailout+2009) (hereinafter “Richard Nardelli Letter to Chrysler
Employees”).
61
Chrysler Group LLC, Chrysler Group LLC Announces Organizational Structure Focused on Chrysler,
Jeep, Dodge and Mopar Brands (Jun. 10, 2009) (online at
www.chryslergroupllc.com/en/news/article/?lid=new_organizational_structure&year=2009&month=60) (hereinafter
Chrysler Org Structure Announcement”).
62
Chrysler and Fiat facing a long road, Pittsburgh Post Gazette (June 11, 2009) (online at www.postgazette.com/pg/09162/976675-185.stm) (hereinafter “Chrysler/Fiat Face Long Road”).
63
Chrysler Group LLC, Chrysler LLC to Assume Supplier Agreements (May 15, 2009) (online at
www.chryslerrestructuring.com/chr/Press%20Release%20May%2015%202009.pdf) (hereinafter “Chrysler Assumes
Supplier Agreements”).
64
Chrysler Vice President Peter Grady, The Real Story on Chrysler‟s Dealer Network, Chrysler Corporate
Blog (July 16, 2009) (online at blog.chryslerllc.com/blog.do?id=717&p=entry) (hereinafter “Real Story on
Chrysler‟s Dealer Network”).
65
National Automobile Dealers Association, NADA Statement on Chrysler‟s Dealership Reduction
Announcement (May 14, 2009) (online at
16
and automotive companies, usually claiming that close oversight is necessary to equalize the
bargaining power of dealerships and automakers.66 Generally, states only allow an automotive
manufacturer to terminate a dealer contract if it has good cause.67 However, the bankruptcy
process provided the automotive manufacturers with greater flexibility in terminating dealership
contracts.68 Congress is currently considering a number of bills to restore the terminated dealers‟
contracts.69
Both Chrysler and GM maintain that their dealer networks were oversized and that
downsizing was necessary to regain viability.70 Domestic brands in 2008 accounted for about
two thirds of U.S. dealerships,71 but only 48 percent of new vehicle sales.72 Chrysler, for
www.nada.org/MediaCenter/News+Releases/NADA+Statement+on+Chrysler%E2%80%99s+Dealership+Reductio
n+Announcement.htm) (hereinafter “NADA Chrysler Statement”).
66
New Motor Vehicle Board of Cal.v. Fox, 439 U.S. 96, 100-01 (1978).
67
National Automobile Dealers Association, The Benefits of the Franchised Dealer Network: The
Economic and Statutory Framework, at 5 (Nov. 24, 2008) (online at
www.magnetmail.net/images/clients/NADA/attach/BenefitsDealerNetwork.doc) (hereinafter “Benefits of the
Franchised Dealer Network”).
68
In light of the recent news that Chrysler plans to open new dealerships, often nearby the ones that were
closed, some assert that Chrysler used the bankruptcy to get rid of dealerships that it had wanted to close otherwise.
See Greg Gardner, Chrysler Plans New Dealerships, Detroit Free Press (Aug. 13, 2009) (online at
freep.com/article/20090813/BUSINESS01/908130448/1333/Chrysler-plans-new-dealerships) (hereinafter “Chrysler
Plans New Dealerships”); see also Chrysler Green Lights New Dealerships, American Public Media (accessed Aug.
31, 2009) (online at marketplace.publicradio.org/display/web/2009/08/14/am-chrysler/) (hereinafter “Chrysler Green
Lights New Dealerships”).
69
The Financial Services and General Government Appropriations Act of 2010, passed by the House on
July 16, 2009, includes an amendment that would require Chrysler and GM to reinstate contracts with dealers that
had agreements prior to the Chapter 11 filings. H.R. 3170, Sec. 745(b), Financial Services and General Government
Appropriations Act of 2010, 111th Cong. (hereinafter “H.R. 3170”).
70
House Committee on Energy and Commerce, Subcommittee for Investigations and Oversight, Testimony
of General Motors President and Chief Executive Officer Frederick A. Henderson, Auto Dealership Closures, 111th
Cong., at 2-3 (June 12, 2009) (online at energycommerce.house.gov/Press_111/20090612/testimony_henderson.pdf
) (hereinafter “Fritz Henderson House Testimony”); House Committee on Energy and Commerce, Subcommittee for
Investigations and Oversight, Testimony of Chrysler Vice Chairman and President James Press, Auto Dealership
Closures, 111th, Cong., at 3-5 (June 12, 2009) (online at
energycommerce.house.gov/Press_111/20090612/testimony_press.pdf) (hereinafter “James Press House
Testimony”).
71
General Motors has stated that it had 6,450 U.S. dealerships in 2008. Ford has said that it had 4,106 U.S.
dealerships the same year. And Chrysler has reported that it had more than 3,330 U.S. dealerships in 2008. Summing
those numbers, the “Big Three” had roughly 13,856 U.S. dealerships out of a total of 20,700 U.S. auto dealerships in
2008, or about 67 percent. See General Motors Corp., Restructuring Plan for Long-Term Viability, at 19 (Dec. 2,
2008) (online at online.wsj.com/public/resources/documents/gm_restructuring_plan120208.pdf) (hereinafter “GM
December 2008 Viability Plan”). See alsoFord Sustainability Report 2008/9 – Dealers (accessed Aug. 30, 2009)
(online at www.ford.com/microsites/sustainability-report-2008-09/society-dealers) (hereinafter “Ford Sustainability
Report”); Patti Georgevich, Chrysler‟s Economic Impact, Chrysler Corporate Blog (Dec. 5, 2008) (online at
blog.chryslerllc.com/blog.do?id=552&p=entry) (hereinafter “Chrysler‟s Economic Impact”); Casesa Shapiro Group,
The Franchised Automobile Dealer: The Automaker‟s Lifeline, report prepared for the National Automobile Dealers
Association, at 2 (Nov. 26, 2008) (online at www.nada.org/nr/rdonlyres/5c36b316-e765-4876-8d693bf3a57e7789/0/benefitsoffranchisedealers.pdf).
17
example, has less domestic market share than Toyota,73 but even after its intended closings will
have many more dealers.74 In 2008, Chrysler‟s dealers lost on average $3,431.75 By
consolidating dealerships, the companies argue, they can drive more sales through more
profitable businesses that can afford to invest in their businesses.76 The remaining dealers may
also be able to negotiate more favorable terms with their floor-plan financers.77 This may in turn
help dealers acquire more stock and sell it to consumers at lower prices, thereby increasing sales
and profits for the dealers and for Chrysler and GM.
UAW Chrysler workers agreed to make concessions on compensation and retiree health
benefits. These changes include the adjustments to the funding of the UAW Trust (as discussed
above), cancellation of cost-of-living adjustments for the current workforce, and a restructuring
of skilled trade classifications, among other concessions.78 As Mr. Bloom told the Panel at its
72
Autodata Corp.‟s Motor Intelligence Web site (accessed Aug. 30, 2009) (online at
www.motorintelligence.com/fileopen.asp?File=SR_Sales-4.xls).
73
In 2008, Toyota had 1,649,045 light-vehicle retail sales, compared with 1,076,170 for Chrysler. Id.
74
Toyota, United States Operations 2009, at 5 (accessed Aug. 30, 2009) (online at
pressroom.toyota.com/pr/tms/document/TNA_OPS_MAP_2009.pdf) (hereinafter “Toyota US Operations 2009”).
75
Senate Commerce, Science, and Transportation Committee, Testimony of Vice Chairman and President
Chrysler LLC James Press, Chrysler‟s Dealership Network, 111th Cong., at 3 (June 3, 2009) (online at
commerce.senate.gov/public/_files/PressTestimonyDealerships.pdf) (hereinafter “James Press Senate Testimony”).
76
Senate Commerce, Science, and Transportation Committee, Testimony of General Motors President and
CEO Fritz Henderson, GM and Chrysler Dealership Closures: Protecting Dealers and Consumers, 111th Cong., at
3, 5 (June 3, 2009) (online at commerce.senate.gov/public/_files/HendersonTestimonyDealerships.pdf) (hereinafter
“Fritz Henderson Senate Testimony”); James Press Senate Testimony, supra note 75 at 5-6.
77
Comptroller of the Currency, Comptroller‟s Handbook on Floor Plan Loans, at 3 (accessed Aug. 30,
2009) (online at www.occ.treas.gov/handbook/floorplan1.pdf) (hereinafter “Comptroller Floor Plan Handbook”)
(“Dealers selling in large volume are usually granted a three-day leeway before proceeds from inventory sold are
required to be received by the bank.”); Lynn M. LoPucki & Elizabeth Warren, Secured Credit: A Systems Approach,
at 252-53, 263 (hereinafter “Secured Credit: A Systems Approach”).
78
UAW Chrysler, Modifications to 2007 Agreement and Addendum to VEBA Agreement (Apr. 2009)
(online at download.gannett.edgesuite.net/detnews/2009/pdf/UAWChrysler.pdf); Congressional Oversight Panel,
Testimony of Ron Bloom before the Congressional Oversight Panel: Regarding the Treasury‟s Automotive Industry
Financing Program (July 27, 2009) (online at cop.senate.gov/documents/testimony-072709-bloom.pdf) (hereinafter
“UAW Statements on VEBA Modifications”) (“The UAW made important concessions on wages, benefits, and
retiree health care. These concessions brought New Chrysler's compensation in line with that of Toyota and other
foreign automotive manufacturers at their US operations. In addition, the UAW retirees exchanged an almost $8
billion fixed obligation to the Voluntary Employees' Beneficiary Association (VEBA) retiree health trust for a $4.6
billion unsecured note and stock in New Chrysler. This arrangement shifts substantial risk onto the retiree health
care trust and will likely result in meaningful reductions in health care benefits for New Chrysler's 150,000 retirees.
The Trust, which is managed by an independent committee of legally bound fiduciaries, will, other than a single seat
on the Company's Board of directors, will [sic] have no role in the governance of the Company. However, the
ability of the Trust to provide decent benefits over the long-term will require that the Company's stock become
valuable, thus significantly aligning the interests of the Company and the VEBA as a key stakeholder.”) (hereinafter
“Ron Bloom Prepared COP Testimony”).
18
hearing in Detroit on July 27, “these concessions brought New Chrysler‟s compensation in line
with that of Toyota and other foreign automotive manufacturers at their U.S. operations.”79
New Chrysler is not a public company and is not required to file reports with the
Securities and Exchange Commission (SEC). However, Mr. Bloom has stated that both New
Chrysler and the New GM will file quarterly reports with the SEC.80
2. New General Motors
A month after Chrysler entered bankruptcy, GM followed on June 1, 2009.81 On July 5,
GM sold its “good” assets under Section 363 of the Code to a new, government-owned entity,
General Motors Company (New GM).82 The new company purchased substantially all of the
assets of Old GM needed to implement its new, leaner viability plan, which will focus on four
core brands: Chevrolet, Cadillac, Buick, and GMC. New GM plans to close 11 facilities and idle
another three facilities.
Again, the technical details of the disposition of assets are discussed in more detail
below. Under the terms of a Master Purchase and Sale Agreement, Old GM unsecured creditors
will receive a pro-rata share of 10 percent of the equity of New GM, plus warrants for an
additional 15 percent of New GM.83 At least 54 percent of Old GM bondholders voted to
approve the transaction. 84 New GM issued 17.5 percent equity to the UAW Trust, as well as
warrants to purchase an additional two and a half percent of the company. The UAW Trust will
also be funded by a $2.5 billion note maturing in 2017, and $6.5 billion in nine percent perpetual
79
Id.
80
Nick Bunkley, U.S. Likely to Sell G.M. Stake Before Chrysler, New York Times (Aug. 5, 2009) (online at
www.nytimes.com/2009/08/06/business/06auto.html).
81
Voluntary Chapter 11 Petition, at 1 (June 1, 2009), In Re General Motors Corp., S.D.N.Y (No.09-50026
(REG)) (online at docs.motorsliquidationdocket.com/pdflib/01_50026.pdf) (hereinafter “GM Bankruptcy Petition”).
82
Order (I) Authorizing Sale of Assets Pursuant to Amended and Restated Master Sale and Purchase
Agreement with NGMCO, Inc., a Treasury-Sponsored Purchaser; (II) Authorizing Assumption and Assignment of
Certain Executory Contracts and Unexpired Leases in Connection with the Sale; and (III) Granting Related Relief,
(July 5, 2009), In Re General Motors Corp., S.D.N.Y. (No. 09-50026 (REG)) (online at
docs.motorsliquidationdocket.com/pdflib/2968_order.pdf) (hereinafter “Order Authorizing GM 363 Sale”).
83
First Amendment to Amended and Restated Master Sale & Purchase Agreement (June 26, 2009) In Re
General Motors Corp., S.D.N.Y. (No. 09-50026 (REG)) (online at
docs.motorsliquidationdocket.com/pdflib/amendment_630.pdf) (hereinafter “First Amendment to GM Master Sale
Agreement”).
84
Rod Lache, Industry Update: Implication of GM‟s Bankruptcy Filing Today, Deutsche Bank (May 31,
2009) (hereinafter “Deutsche Bank Report on Implications of GM Bankruptcy”).
19
preferred stock.85 The UAW Trust has the right to select one independent director, but no right
to vote its shares nor any other governance rights.
Treasury received 61 percent of the equity of New GM and $9.2 billion in debt and
preferred stock.86 It also received the right to select 10 initial members of the GM board of
directors. The governments of Canada and Ontario received approximately 12 percent of the
equity in New GM, approximately $1.7 billion in debt and preferred stock, and the right to select
one director for as long as they hold their current share of New GM equity.87
Treasury provided approximately $30.1 billion of financing to support GM through an
expedited Chapter 11 proceeding and restructuring.88 Treasury has no plans to provide any
additional assistance to GM beyond this commitment.89
By the end of July, New GM had filled all of the positions on its board of directors.90
The 13 members bring experience from a wide range of industries and backgrounds. Ten of
these directors were appointed or reinstated by Treasury: Daniel Akerson, managing director and
head of global buyout at private equity firm The Carlyle Group; David Bonderman, co-founder
of private equity firm Texas Pacific Group; Erroll B. Davis, Jr., chancellor of the University
System of Georgia; E. Neville Isdell, retired chairman and CEO of Coca-Cola; Robert D. Krebs,
retired chairman and CEO of Burlington Northern Santa Fe Corporation; Kent Kresa, chairman
emeritus of Northrop Grumman Corporation; Philip A. Laskawy, retired chairman and CEO of
Ernst & Young LLP; Kathryn V. Marinello, chairman and CEO of Ceridian Corporation; Patricia
F. Russo former chief executive officer of Alcatel-Lucent; and Edward E. Whitacre, Jr. former
chairman of the board of AT&T, who was chosen to be chairman of the board. Carol M.
Stephenson, dean of the Richard Ivey School of Business at the University of Western Ontario,
was appointed by the Canadian government.
85
White House, Fact Sheet: Obama Administration Auto Restructuring Initiative General Motors
Restructuring (June 30, 2009) (online at financialstability.gov/latest/05312009_gm-factsheet.html) (hereinafter
“White House GM Restructuring Fact Sheet”).
86
General Motors Corp., Form 8-K (July 16, 2009) (online at
www.sec.gov/Archives/edgar/data/1467858/000119312509150199/0001193125-09-150199-index.htm) (hereinafter
“GM July 16, 2009 8-K”).
87
Stockholder Agreement by and Among General Motors Company, United States Department of the
Treasury, 7176384 Canada Inc., and UAW Retiree Medical Benefits Trust, 8 (July 10, 2009) (online at
www.sec.gov/Archives/edgar/data/1467858/000119312509150199/dex101.htm) (hereinafter “New GM Stockholder
Agreement”).
88
Declaration of J. Stephen Worth, supra note 36 at appx. 18.
89
White House Office of the Press Secretary, Remarks by the President on General Motors Restructuring
(June 1, 2009) (online at www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-General-MotorsRestructuring/) (hereinafter “White House June 1 Remarks on GM Restructuring”).
90
General Motors, Board of Directors (accessed on Aug. 11, 2009) (online at
www.gm.com/corporate/about/board.jsp) (hereinafter “GM Description of Board of Directors”).
20
In late March 2009, as Treasury sought to invest additional funds in GM, President
Obama announced the departure of CEO Rick Wagoner, who was replaced by COO Fritz
Henderson.91 As part of the restructuring, the Motors Liquidation Company (MLC) board of
directors and former CEO Wagoner reduced their 2009 compensation to one dollar, and several
other executive officers took salary cuts between 10 and 30 percent.92
GM subsequently notified 1,300 of its approximate 6,000 U.S. dealers that they would be
closing by year end 2010, aiming eventually to trim its total to about 4,000.93 GM provided
approximately $600 million in financial assistance in return for the dealers‟ selling down their
existing inventory over the subsequent twelve months.94 These payments could vary widely
based on each dealer‟s situation.
GM‟s UAW workers agreed to make concessions on compensation and health benefits.
These concessions were similar to those of Chrysler workers. GM workers gave up cost-ofliving adjustments, performance bonuses, one paid holiday in each of 2010 and 2011, tuition
assistance, and some health benefits.95 The UAW estimated that these cuts would save GM
between $1.2 and $1.3 billion per year.96
New GM is not a public company and is not required to file reports with the SEC,
although as discussed above it is intended that GM will file financial statements with the SEC by
2010.
3. Warranties
The automotive companies‟ widely publicized vulnerability in late 2008 and early 2009
raised concerns that consumers might not purchase Chrysler and GM automobiles for fear that
these companies could not back their warranties. When Treasury announced the results of the
auto team‟s work on March 30, Treasury also created a new program to backstop the two
companies‟ new vehicle warranties. This program applied to any new GM or Chrysler car
91
White House, Remarks by the President on the American Automotive Industry (Mar. 30, 2009) (online at
www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-the-American-Automotive-Industry-3/30/09/)
(hereinafter “March 30 Presidential Remarks”).
92
General Motors Corp., Form 8-K, at 39 (Aug. 7, 2009) (online at
www.sec.gov/Archives/edgar/data/1467858/000119312509169233/d8k.htm) (hereinafter “GM August 7 8-K”).
93
House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, Testimony
of Vice President and General Counsel of North America General Motors Company Michael J. Robinson,
Ramifications of Auto Industry Bankruptcies, Part III 111th Cong., at 5 (July 22, 2009) (online at
judiciary.house.gov/hearings/pdf/Robinson090722.pdf) (hereinafter “Michael Robinson House Testimony”).
94
Id.
95
Id.
96
Kimberly S. Johnson and Tim Trisher, UAW Workers Approve General Motors Concessions, USA
Today (May 29, 2009) (online at www.usatoday.com/money/autos/2009-05-29-gm-uaw_N.htm) (hereinafter “Kim
Johnson and Tim Trisher May 29 USA Today Report”).
21
bought during the restructuring period.97 The program was sized at 125 percent of the costs
projected by the manufacturer to satisfy anticipated claims. Each of Chrysler and GM provided
15 percent of the projected funds necessary with Treasury providing the remaining 110 percent
of the projected costs via loans.98
Prior to entering bankruptcy proceedings, Chrysler and GM created special purpose
vehicles (SPVs) to hold those funds. Treasury lent Chrysler and GM $280 million99 and $361
million,100 respectively. Both Chrysler and GM have since repaid these loans.101 To date, GM‟s
repayment of its SPV facility has been its only repayment of TARP funds.102
4. Supplier Support Program
As a result of the downturn in the economy, automotive suppliers, upon whose
functioning Chrysler and GM depend, had great difficulty accessing credit.103 The viability
plans of Chrysler and GM both pointed to the vulnerability of their suppliers.104 Consequently,
on March 19, Treasury announced the Auto Supplier Support Program (ASSP) to make available
up to $5 billion in financing.105 The government guaranteed the payment of products suppliers
shipped, even if the automotive companies went under. In order to further unlock credit,
participating suppliers could also sell their receivables into the program at a discount before
maturity. The program would be run through American automotive companies that agreed to
97
U.S. Department of Treasury, Obama Administration‟s New Warranty Commitment Program (Mar. 30,
2009) (online at www.financialstability.gov/docs/WarranteeCommitmentProgram.pdf) (hereinafter “White House
Statement on New Warranty Commitment Program”).
98
Id.
99
White House Office of the Press Secretary, Obama Administration Auto Restructuring Initiative:
Chrysler-Fiat Alliance (hereinafter “Chrysler-Fiat Alliance”) (Apr. 30, 2009) (online at
www.whitehouse.gov/the_press_office/Obama-Administration-Auto-Restructuring-Initiative/) (hereinafter
“Chrysler-Fiat Alliance”).
100
U.S. Department of Treasury, Obama Administration Auto Restructuring Initiative: General Motors
Restructuring (Mar. 31, 2009) (online at www.financialstability.gov/latest/05312009_gm-factsheet.html)
(hereinafter “White House March 31 Remarks on GM Restructuring”).
101
U.S. Department of Treasury, TARP Transactions Report, at 15 (Aug. 4, 2009) (online at
www.financialstability.gov/docs/transaction-reports/transactions-report_08042009.pdf) (hereinafter “August 4
102
U.S. Department of Treasury, Transactions Report, at 16 (Aug. 28, 2009) (online at
financialstability.gov/docs/transaction-reports/transactions-report_08282009.pdf) (hereinafter “August 28
103
U.S. Department of Treasury, Auto Supplier Support Program: Stabilizing the Automotive Industry at a
Time of Crisis (Mar. 18, 2009) (online at www.treas.gov/press/releases/docs/supplier_support_program_3_18.pdf)
(hereinafter “Stabilizing the Automotive Industry at a Time of Crisis”).
104
Chrysler Restructuring Plan, supra note 28; GM Restructuring Plan, supra note 27.
105
U.S. Department of the Treasury, Treasury Announces Auto Supplier Support Program (Mar. 19, 2009)
(online at www.financialstability.gov/latest/auto3_18.html) (hereinafter “Treasury Auto Supplier Support Program
Announcement”).
22
participate in the program. The supplier would pay a small fee for the right to participate in the
program. Although all domestic automotive companies were eligible, only Chrysler and GM
chose to participate. By April 9, $1.5 billion was made available to Chrysler and $3.5 billion to
GM under the program.106 The total commitment was reduced on July 8 to $1 billion for
Chrysler and $2.5 billion for GM.107
5. White House Council on Automotive Communities and Workers
One aspect of TARP assistance to the automotive industry is the fallout created by the
restructurings. In aiming to make Chrysler and GM more competitive and sustainable, President
Obama has recognized the difficult sacrifices that many stakeholders and communities have
made across the nation.108 The government-backed restructurings have resulted in substantial
sacrifices for many, including further job reductions and dealership and parts supplier closings
that impact the welfare and livelihood of dealers, retirees, workers and the greater
communities109 surrounding automotive plants and dealerships. The Obama Administration has
created a White House Council on Automotive Communities and Workers, co-chaired by Mr.
Summers and Secretary of Labor Hilda L. Solis. Edward Montgomery, a former deputy
secretary of labor, was appointed as the new director of recovery for auto communities and
workers to work with autoworkers and auto communities to help offset the impact of these
changes and assist communities as they reorient their local economies.110 President Obama
stated that the hardships currently being faced are necessary in order for the American
automotive industry to reemerge as the “best automotive industry in the world”111 and for the
future of this nation to continue to be premised on the ingenuity and entrepreneurship of current
generations and generations past.112
C. The Impact of the Reorganizations: Who Got What?
1. Chrysler
106
August 18 Transactions Report, supra note 1.
107
108
White House June 1 Remarks on GM Restructuring, supra note 89.
109
According to data from the Center for Automotive Research, more than 50 U.S. towns and cities have
had a major automotive plant closure in the past five years.
110
White House, Executive Order Establishing a White House Council on Automotive Communities and
Workers (June 23, 2009) (online at www.whitehouse.gov/the_press_office/Establishing-a-White-House-Council-onautomotive-communities-and-workers/) (hereinafter “Executive Order Establishing White House Council on
Automotive Communities and Workers”).
111
White House Office of Press Secretary, Remarks by the President on the Auto Industry (Apr. 30, 2009)
(online at www.whitehouse.gov/the_press_office/Remarks-by-the-President-on-the-Auto-Industry/) (hereinafter
“White House April 30 Remarks on Auto Industry”).
112
Id.
23
At the time of the Chapter 11 filing, Chrysler was owned 80.1 percent by Cerberus and its
affiliates and 19.9 percent by Daimler and its affiliates.113 Chrysler owed money to several
groups of creditors. Under a first lien credit agreement, Chrysler had borrowed $10 billion from
a group of lenders114 on a secured basis, meaning that if Chrysler defaulted, specific assets,
known as collateral, could be seized by those lenders.115 The collateral for this loan was nearly
all Chrysler‟s assets.116 At the time of filing, Chrysler owed $6.9 billion to the “first lien
lenders” under this agreement.
Under a second lien credit agreement, Chrysler received a further loan from affiliates of
its shareholders.117 This loan was secured by a “second lien” over the assets that formed the
collateral for the first lien credit agreement, meaning the second lien lenders had access to
collateral securing their loan only after the first lien lenders were paid off. At the time of filing,
Chrysler owed $2 billion to the second lien lenders. Under the TARP funding discussed above,
Chrysler borrowed a total of $4 billion from Treasury.118 As security for this loan, Treasury
received a third lien over the assets securing the first and second lien credit agreements, and a
first lien on all unencumbered assets. (The warranty advance discussed above was secured by
the funds in the warranty SPV.) The amount owed to Treasury at the time of filing was $4.28
billion.
In 2008, Chrysler (like GM and Ford) had entered into a settlement agreement pursuant
to litigation between the UAW, individual workers and the automotive companies.119 Under this
agreement, a trust was created to provide medical benefits to UAW retirees. Chrysler was
113
Affidavit of Ronald E. Kolka In Support of First Day Pleadings, at 5 (April 30, 2009), In Re Chrysler
LLC, S.D.N.Y. (No. 09 B 50002 (AJG)) (online at chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215f675-41bf-a79b-e1b2cb9c18f0&l=1) (hereinafter “Ronald Kolka Declaration”).
114
About 70 percent of this debt is held by four banks that received TARP funding: JP Morgan Chase ($25
billion in TARP funding), Citigroup ($45 billion in TARP funding), Morgan Stanley ($10 billion in TARP funding),
Goldman Sachs ($10 billion in TARP funding). Ronald Kolka Declaration, supra note 113 at 5. Some creditors have
claimed that Treasury used its status as a creditor to these institutions as leverage in negotiating over this secured
debt. See, for example, Indiana State Police Pension Trust et al. v. Chrysler LLC, No. 09-2311-bk, 2009 WL
2382766 (2d Cir. Aug. 5, 2009); Neil King Jr. and Jeffrey Mccracken, U.S. Forced Chrysler‟s Creditors to Blink,
Wall Street Journal (May 11, 2009) (online at online.wsj.com/article/SB124199948894005017.html) (hereinafter
“Neil King and Jeffery McCracken May 11 Wall Street Journal Report”).
115
When the value of the collateral is less than the amount of the secured claim, the secured creditors
become unsecured creditors with respect to the shortfall.
116
Ronald Kolka Declaration, supra note 113 at 5.
117
The lenders included Daimler Financial, an affiliate of Daimler, with $1.5 billion in commitments and
Madeleine LLC, an affiliate of Cerberus, with $500 million in committments. Ronald Kolka Declaration, supra
note 113 at 5.
118
The $4.8 billion total includes three separate loans to Chrysler Holding LLC. Treasury made a $4 billion
loan on Jan. 2, 2009. It made additional loans of $500 million and $280,130,642 on April 29, 2009. August 28
TARP Transactions Report, supra note 102.
119
See discussion of the UAW Trust, supra note 49.
24
supposed to fund this trust with cash. At the time of the filing, Chrysler owed the UAW Trust
$10.6 billion.120
Chrysler also had significant unsecured debt owing to trade creditors such as suppliers.
At the time of filing, this amounted to approximately $5.3 billion.121
When, as discussed above, the government indicated that it would support Chrysler‟s
viability plan,122 Fiat established New CarCo. Acquisition LLC (New Chrysler) under Delaware
law. Chrysler, Fiat and New Chrysler tentatively entered into a master transaction agreement
(MTA).123 Under the MTA, with the approval of the bankruptcy court124 and in accordance with
Section 363, Old Chrysler sold substantially all its operating assets to New Chrysler, and in
exchange for those assets New Chrysler assumed some of the liabilities of Old Chrysler125 (most
importantly the obligations to the UAW Trust) and paid Old Chrysler $2 billion in cash.126
That $2 billion in cash, together with any remaining assets of Old Chrysler not
transferred to New Chrysler, becomes the “bankruptcy estate” of Old Chrysler and will be
distributed to the first lien lenders in accordance with bankruptcy law.127 As also discussed
above, certain of those lenders objected to the Section 363 sale. Notwithstanding the objection
of the dissenting creditors, they will receive the same payout – about 29 cents on the dollar – that
120
Chrysler Restructuring Plan, supra note 28.
121
Ronald Kolka Declaration, supra note 113 at 5.
122
See supra Section B.
123
Master Transaction Agreement, supra note 45. The agreement was conditioned on the approval of
various other agreements or settlements with other parties, including Treasury and the UAW, as well as overall
acceptance of the transaction by the bankruptcy court.
124
Master Transaction Agreement, supra note 45.
125
U.S. Treasury Office of Public Affairs, Obama Administration Auto Restructuring Initiative (April 30,
2009) (online at www.financialstability.gov/latest/tg_043009.html) (hereinafter “White House April 30 Remarks on
Auto Restructuring Initiative”).
126
Id.
127
The secured creditors committee sued J.P. Morgan, the administrative agent for the deal, demanding that
$1.4 billion paid to Chrysler secured debt holders be returned because liens on the debt were not perfected. See
generally, In re Chrysler LLC, 405 B.R. 84 (Bankr. S.D.N.Y. 2009); Alan Zimmerman, GM Creditor Panel Seeks to
Recoup $1.4 billion from Secured Lenders, Standard & Poor‟s: Leveraged Commentary & Data (Aug. 3, 2009)
(hereinafter “Alan Zimmerman S&P Commentary”).
25
the assenting creditors do.128 Since the first lien lenders were owed $6.9 billion, there was no
money left over for secured lenders with second or lower liens, or for any unsecured creditors. 129
New Chrysler‟s operations are not constrained by bankruptcy law, and it is able to make
whatever commercial arrangements it chooses regarding (a) to whom it sells ownership interests
in New Chrysler, (b) which assets and contracts of Old Chrysler it will acquire, and (c) ongoing
commercial relationships with persons (such as dealers, suppliers and unions) who may have had
relationships with Old Chrysler.130
Thus, in exchange for a new collective bargaining agreement with the UAW, New
Chrysler will fund the UAW Trust with a combination of a $4.6 billion note and 67.7 percent of
the equity in New Chrysler.131 Fiat will contribute technology and other capabilities, and receive
about 20 percent equity in New Chrysler.132 Treasury received a 10 percent stake in the
company, as well as notes that equal about $7.1 billion. If Fiat is able to achieve certain
performance goals with New Chrysler, its stake will increase to a 35 percent equity share, while
the UAW Trust‟s and Treasury‟s stakes will decrease to 55 percent and 8 percent,
respectively.133
The status of the principal stakeholders in Chrysler and New Chrysler at the time of
filing and after reorganization is thus:
134
Figure 1: Status of the Principal Stakeholders in Chrysler and New Chrysler
128
This outcome stands in contrast with press release issued by the White House on April 30, 2009. This
release stated: “In order to effectuate this alliance without rewarding those who refused to sacrifice, the U.S.
government will stand behind Chrysler‟s efforts to use our bankruptcy code to clear away remaining obligations and
emerge stronger and more competitive.” White House April 30 Remarks on Auto Restructuring Initiative, supra
note 125.
129
Some of these entities, such as the UAW Trust, did receive interests in New Chrysler, as discussed in
more depth below. From a technical point of view, they received these interests in their capacity as independent
contracting entities offering consideration (such as revised employment contracts with the UAW) to New Chrysler
in exchange for New Chrysler equity. Section 363 sales are discussed in more depth in Section E of this report.
130
The significant policy implications of this are discussed in Section G below.
131
White House April 30 Remarks on Auto Restructuring Initiative, supra note 125.
132
133
134
This report analyzes information at several different points in the restructuring process. Dollar amounts
in this section are given as at the time of filing for bankruptcy. They may therefore differ from dollar amounts in
Section F, which shows amounts initially expended and amounts outstanding at the time of this report.
26
Stakeholder
What Old Chrysler
Owed Them
What They Get from
Old Chrysler in
Liquidation
What They
Contributed to New
Chrysler
What They Got from
New Chrysler
First lien secured
$6.9 billion in secured
$2 billion cash
N/A
N/A
Wiped out
$600 million to settle
135
136
lenders
claims
Daimler
$2 billion in second
lien debt; 19.9% equity
for Daimler and 80.1%
equity for Cerberus
Cerberus
claim with PBGC
–
137
Contribution of claim
against Daimler to
indirectly assist
settlement with PBGC
135
These lenders include JP Morgan Chase & Co., Citigroup Inc., Goldman Sachs Group Inc., & Morgan
Stanley & Co. Inc., all recipients of TARP money, as discussed in note 155. infra. Ronald Kolka Declaration, supra
note 113 at 5. These lenders include the Indiana Pension Funds.
136
Chrysler Restructuring Plan, supra note 28.
137
When Chrysler filed for bankruptcy, its pension liabilities were significantly underfunded. As part of
the bankruptcy process, Chrysler received court approval of a settlement among the company, the Pension Benefit
Guaranty Corporation, Daimler and Cerberus. As noted in the PBGC‟s press release (online at
www.pbgc.gov/media/news-archive/news-releases/2009/pr09-21.html), the settlement frees Daimler of its $1 billion
guaranty of the Chrysler pension plans. In exchange, Daimler will pay $200 million into the pension plans
immediately upon final execution of the agreement, and will also pay $200 million into the plans in 2010 and 2011.
If the Chrysler pensions terminate before August 2012 and are trusteed by the PBGC, Daimler will pay $200 million
to the PBGC insurance program. In addition, Cerberus and Daimler have agreed to waive various loans they made
to Chrysler as part of the Cerberus‟ 2007 acquisition of the company. Order Authorizing Debtor Chrysler LLC to
Enter Into a Settlement on the Terms Set Forth in the Binding Term Sheet Among Daimler, the DC Contributors,
Cerberus, Chrysler Holding, Chrysler and PBGC Pursuant to Rule 9019 Federal Rules of Bankruptcy Procedure
(June 5, 2009), In Re Chrysler LLC, S.D.N.Y. (No. 09 B 50002 (AJG)) (online at
“Order Allowing Chrysler Pension Settlement”).
27
Treasury
First TARP financing
(1/2/09): $4 billion;
first lien on all
unencumbered
property, third lien on
previously encumbered
assets
Bankruptcy estate will
not cover TARP or
DIP financing except
the portion assumed by
New Chrysler
TARP financing
(6/10/09): up to $6.6
billion senior secured
debt
8 % equity (9.85%
Second TARP
financing (4/29/09):
$1.89 billion for DIP
(debtor-in-possession)
financing (of $3.8
billion commitment)
(Note: With respect to
the first TARP
financing, Treasury has
a claim on the value of
Chrysler Financial
equity at the greater of
$1.375 billion or 40%
of total equity value)
UAW Trust
$8 billion in unsecured
claims
Nothing from Old
Chrysler
UAW gave
concessions on wages,
benefits, retiree health
care to New Chrysler
55% equity (67.69%
currently); $4.6 billion
note
Fiat
N/A
N/A
Technology, IP, access
to distribution
20% equity with an
additional 15%
available if certain
performance metrics
are met
network
Governments of
Ontario and Canada
$600 million loan
Nothing from Old
Chrysler
$1.125 billion for DIP
financing
139
$600 million original
loan assumed by New
Chrysler
138
currently),
as well
as a $6.6 billion note
and the assumption of
$500 million of the
first TARP financing
2% equity (2.46%
currently) and a note
for up to $1.9 billion
140
$1.3 billion loan
2. General Motors
At the time of the Chapter 11 filing, GM was a publicly owned company traded on the
New York Stock Exchange.141
138
The “current” figures, which are indicated for Treasury, UAW Trust, and the Governments of Canada
and Ontario, represent the equity breakdown before Fiat increases its equity holding after meeting specified
performance metrics. If Fiat secures its potential 35 percent equity holding, the other equity holdings will decrease
as indicated.
139
Chrysler-Fiat Alliance, supra note 99.
140
$1.3 billion of financing commitments were provided by the Canadian and Ontario governments in the
form of working capital and exit financing loans that will continue to be the obligations of New Chrysler.
141
General Motors Corp., Form 10-K (March 5, 2009) (online at
www.sec.gov/Archives/edgar/data/40730/000119312509045144/d10k.htm) (hereinafter “GM Fiscal Year 2008 10K”).
28
As with Chrysler, GM owed money to various groups of creditors.
At the time of the GM bankruptcy filing on June 1, 2009, GM‟s largest secured debt was
to Treasury (in the amount of $19.4 billion) backed by collateral including, in part, intellectual
property, real property, cash, and equity. After GM filed for bankruptcy, Treasury provided GM
with $30.1 billion of debtor in possession (DIP) financing142 that was used to facilitate GM‟s
restructuring process. As will be discussed below, this DIP financing constituted an
administrative priority claim and gave Treasury priority over the claims of unsecured creditors.
GM‟s largest secured claims outside the U.S. government were: bank lenders represented
by Citicorp US, Inc. ($3.865 billion); bank lenders represented by JP Morgan Chase Bank
($1.488 billion); Export Development Canada ($400 million); and Gelco Corporation ($125
million).143 These totaled approximately $6 billion and were backed by collateral that included,
in part, inventory, equipment, and equity interest.
Old GM had unsecured claims that totaled $116.5 billion. Of those claims, $27.1 billion
were attributable to unsecured bonds.144
At the time of filing, the largest unsecured claims were: Wilmington Trust Company
($22.760 billion, bond debt); UAW ($20.560 billion, owed to the UAW Trust); Deutsche Bank
AG ($4.444 billion, bond debt); IUE-CWA ($3.669 billion, employee obligations); and Bank of
New York Mellon ($176 million, bond debt). The remaining 45 unsecured claims were all trade
debt, and totaled $894 million.145
On June 1, President Obama outlined the Treasury auto team‟s plan to restructure GM.146
New GM was created. Pursuant to the Master Sale and Purchase Agreement (MPA),147 New
GM purchased most of Old GM‟s assets and assumed certain liabilities.148 In exchange, New
142
See Section G(4) of this report.
143
GM Bankruptcy Petition, supra note 81 at 94.
144
GM Bankruptcy Petition, supra note 81at 6.
145
GM Bankruptcy Petition, supra note 81at 81.
146
147
Master Purchase and Sale Agreement by and Among General Motors Corporation, Saturn LLC, Saturn
Distribution Corporation, and Vehicle Acquisition Holdings LLC (June 1, 2009), In Re General Motors Corp.,
S.D.N.Y. (No. 09-50026 (REG)) (online at docs.motorsliquidationdocket.com/pdflib/pleading_5.pdf) (hereinafter
“GM Master Purchase Agreement”).
148
New GM did not assume the following liabilities: (i) products liability claims arising out of products
delivered prior to the 363 sale transaction closing (to the extent they were not assumed by reason of the change in
the MPA after the filing of objections); (ii) liabilities for claims arising out of exposure to asbestos; (iii) liabilities to
third parties for claims based upon contract, tort or any other basis; (iv) liabilities related to any implied warranty or
other implied obligation arising under statutory or common law; and (v) employment-related obligations not
otherwise assumed, including, among other obligations, those arising out of the employment, potential employment,
or termination of any individual (other than an employee covered by the UAW collective bargaining agreement)
prior to or at the closing of the 363 sales transaction. In re GMC, 407 B.R. 463, 482 (Bankr. S.D.N.Y. 2009).
29
GM paid Old GM consideration of 10 percent of the equity in New GM and warrants for a
further 15 percent of New GM‟s equity, totaling approximately $7.4 to $9.8 billion in value.149
In addition, Treasury and the Canadian government credit bid their loans to Old GM, which
totaled approximately $45 billion.150 This amount included the $19.4 billion in pre-bankruptcy
indebtedness and the portion of the $33.3 billion DIP facility that was not assumed by New GM
or left behind for the wind-down of Old GM. That consideration became part of Old GM‟s
bankruptcy estate. Where cash is bid in a Section 363 sale (as was the case in Chrysler), that
cash becomes part of the bankruptcy estate to be distributed to the debtor‟s creditors. In a credit
bid, the debt owed to the bidder by the bankruptcy estate is offset by the amount of the credit bid,
reducing the amount of claims that will share in the distribution of the remaining assets, and
thereby increasing the value of the bankruptcy estate that will be distributed to the non-bidding
creditors.
Old GM‟s secured lenders were repaid, leaving the unsecured lenders with their pro rata
share of the 10 percent equity in New GM.
As with New Chrysler, New GM was able to dispose of ownership interests in New GM
as it saw fit. Treasury received $6.7 billion in New GM debt (of which $361 million related to
the warranty program has been repaid) and $2.1 billion in New GM preferred stock151 and
approximately 61 percent of the equity in New GM. The governments of Canada and Ontario
received $1.7 billion in debt and preferred stock and approximately 12 percent of the equity in
New GM.152
Old GM owed a $20 billion obligation to the UAW Trust. Pursuant to the UAW Retiree
Settlement Agreement,153 New GM will transfer to the UAW Trust 17.5 percent of the equity in
New GM, warrants to purchase an additional 2.5 percent, a $2.5 billion note, and $6.5 billion in
preferred stock.
The status of the principal stakeholders in Old GM and New GM at the time of filing and
after reorganization is thus as follows:
149
Stephen Worth Declaration, supra note 36 at appx. 18.
150
Amended and Restated Master Sale and Purchase Agreement by and Among General Motors
Corporation, Saturn LLC, Saturn Distribution Corporation, and Vehicle Acquisition Holdings LLC (June 26, 2009)
(hereinafter “Amended and Restated GM Master Purchase Agreement”).
151
White House March 31 Remarks on GM Restructuring, supra note 100.
152
Prime Minister of Canada, PM and Premier Dalton McGuinty Announce Loans to Support the
Restructuring of Chrysler (June 1, 2009) (online at pm.gc.ca/eng/media.asp?id=2547) (hereinafter “Canadian Prime
Minister‟s Chrysler Announcement”).
153
Form of UAW Retiree Settlement Agreement (June 1, 2009) In Re General Motors Corp., S.D.N.Y. (No.
09-50026 (REG)) (online at docs.motorsliquidationdocket.com/pdflib/uaw_7.pdf) (hereinafter “UAW Retiree
Settlement Agreement”).
30
Figure 2: Status of the Principal Stakeholders in GM and New GM
Stakeholder
What Old GM Owed
Them
What they Get
from Old GM
in Liquidation
What They
Contributed to New
GM
What They Get from
New GM
Old GM
shareholders
Shareholders‟ equity
Wiped out
N/A
N/A
17.5% equity;
warrants to buy an
additional 2.5% in
equity, $2.5 billion
note, $6.5 billion in
preferred stock
UAW Trust
obligations
Nothing from
Old GM
UAW gave
concessions on
wages, benefits,
retiree health care to
New GM
Secured lenders155
$6 billion
Paid in full
N/A
$27.1 billion in bonds and
various other claims
10% of New
GM and
warrants equal
to 15% of New
GM
$20.56 billion in unsecured
Unsecured creditors
154
First TARP financing
(12/29/08): $13.4 billion
DIP financing (6/3/09):
$30.1 billion
$986 million of
Treasury DIP
financing
remains with
Old GM; other
debts were
credit bid and
thus no longer
outstanding
Used approximately
$42 billion in debts to
credit bid for Old GM
assets
$9.5 billion loan including
$3.2 billion in DIP
financing
$189 million of
Canadian DIP
financing
remains with
Old GM; other
amounts credit
bid
Approximately $3
billion of DIP
financing was credit
bid
Second TARP financing
(4/22/09): $2 billion
Third TARP financing
(5/20/09): $4 billion
Treasury
Governments of
Canada and Ontario
N/A
(Equity issued to Old
GM in exchange for
assets)
61% equity
$7.1 billion in notes
(including $361
million for warranty
program already
repaid) and $2.1
billion in preferred
stock
12% equity
$1.3 billion in notes
and $0.4 billion in
preferred stock
154
$10 billion in cash scheduled to be transferred to the UAW Trust on January 1, 2009 had already been
set aside by Old GM in an internal account. This cash is still scheduled to be transferred to the UAW Trust on that
date.
155
As discussed above, these creditors include J.P. Morgan, Citigroup Inc., Goldman Sachs Group Inc., &
Morgan Stanley, all recipients of TARP money. GM Bankruptcy Petition, supra note 81.
31
D. Treasury’s Objectives: What was Treasury Trying to Achieve?
1. What Were Treasury’s Stated Objectives?
In this section, the Panel examines the publicly articulated statements of the Bush and
Obama Administrations at the various points their decisions were announced in order to
determine under which circumstances and upon which conditions the government might
intervene in failing industries. As discussed above, Detroit automotive executives warned
Congress in late 2008 that the collapse of one or more of the Big Three automotive companies
would have national consequences, putting as many as 1.1 million jobs at risk.156 Allocating
TARP assistance under EESA came to be perceived by many as the fastest means to provide
funding to the sector, since it could be done without further action by Congress.
a. December 2008: Rescue Funding – The Bush Administration’s Decision to Allocate
TARP Funds
The Bush Administration‟s initial December 2008 determination to allocate TARP funds
to stabilize the automotive industry through short-term loans was made with the primary goals of
preventing a substantial disruption to the national economy and allowing Chrysler and General
Motors to undergo significant restructuring in order to achieve future profitability and long-term
viability.157 In a press release, then-Treasury Secretary Henry Paulson noted that Treasury
“acted to support Chrysler and General Motors, with the requirement that they move quickly to
develop and adopt acceptable plans for long term viability.”158 The Bush Administration stated
that short-term funding would allow the companies to work with their creditors, the unions, and
Congress to formulate a plan to reduce their debt, some of the residual healthcare costs, and to
achieve additional concessions, in order to attain financial viability.159
Furthermore, as part of the initial decision to allocate TARP funding to the automotive
sector, the Bush Administration made clear the importance of several policy targets as a critical
component of the taxpayers‟ investment.160 These targets included the reduction of outstanding
unsecured debt by two-thirds through a debt for equity exchange, certain labor modifications
156
For further discussions of the economic ramifications of liquidations of Chrysler and General Motors,
see Section B, supra.
157
U.S. Department of the Treasury, Secretary Paulson Statement on Stabilizing the Automotive Industry
(Dec. 19, 2008) (online at www.treas.gov/press/releases/hp1332.htm) (“Today we have acted to support Chrysler
and General Motors, with the requirement that they move quickly to develop and adopt acceptable plans for long
term viability. This step will prevent significant disruption to our economy, while putting the companies on a path
to the significant restructuring necessary to achieve long term viability. At the same time, we are including loan
provisions to protect the taxpayers to the maximum extent possible.”).
158
Id.
159
Bush Plan to Assist Automakers, supra note 16.
160
Chrysler Secured Term Loan Facility Summary, supra note 24; GM Secured Term Loan Facility
Summary, supra note 24.
32
(such as cuts in compensation), and modifications to UAW Trust account contributions, among
others.161 The companies were also required to conclude new agreements with their other major
stakeholders, including dealers and suppliers, by March 31, 2009.162 Many of these targets were
included as part of the proposals for bridge loans that the Bush Administration negotiated with
congressional leadership towards the end of 2008, but which were eventually blocked in the
Senate before the congressional recess.163
b. February – March 2009: Formation of the Task Force and Release of the Obama
Administration’s Viability Determinations
President Obama noted the gravity of the situation facing the American automotive
industry and made the commitment to work with and support these companies as they underwent
restructuring. Upon taking office, the President “inherited an automotive industry that had lost
50 percent of its sales volume and over 400,000 jobs in the year before he took office.”164 By
early 2009, despite having already received substantial loans from the Bush Administration
through TARP funding, Chrysler and GM were requesting additional assistance. President
Obama stated that he considered “the hundreds of thousands of Americans whose livelihoods are
still connected to the American automotive industry, and the impact on an already struggling
economy” and determined that “if Chrysler and GM were willing to fundamentally restructure
their businesses, and make the hard choices necessary to become competitive now and in the
future, it was a process worth supporting.”165 In particular, President Obama noted that among
those Americans who “have suffered most during this recession have been those in the auto
industry and those working for companies that support it,” and cited the historic rise in
unemployment across the Midwest.166 The current Administration has cited the “centrality of the
161
162
163
Bush Plan to Assist Automakers, supra note 16. President Bush noted that his administration worked
with Congress on legislation to provide automotive companies with bridge loans while they developed plans for
viability. “Unfortunately, despite extensive debate and agreement that we should prevent disorderly bankruptcies in
the American Automotive Industry, Congress was unable to get a bill to my desk before adjourning this year.”
Noting that “Congress failed to make funds available for these loans,” President Bush highlighted that “the federal
government will grant loans to automotive companies under conditions similar to those Congress considered” in late
fall 2008.
164
Ron Bloom Prepared COP Testimony, supra note 78 at 1.
165
White House, Remarks by the President on the American Graduation Initiative, Macomb Community
College, Warren, MI (July 14, 2009) (online at www.whitehouse.gov/the_press_office/Remarks-by-the-Presidenton-the-American-Graduation-Initiative-in-Warren-MI/) (hereinafter “White House July 14 Remarks”).
166
During his June 1 remarks on the General Motors restructuring, President Obama again referenced the
importance of a viable auto industry to the welfare of families and communities across the Midwest and throughout
the United States. “In the midst of a deep recession and financial crisis, the collapse of these companies would have
been devastating for countless Americans, and done enormous damage to our economy – beyond the auto industry.”
March 30 Presidential Remarks, supra note 91.
33
automobile industry to the broader economy”167 as justification for this substantial intervention
and stated that inaction would have caused a “spiraling liquidation of Chrysler and GM leading
to massive job losses and long-term damage to the U.S. manufacturing base.”168
From early on in his administration, President Obama gave the Task Force two directives
regarding its approach to the automotive restructurings. First, the Task Force was to avoid
intervening in day-to-day corporate management and refrain from becoming involved in specific
business decisions, since its role was not to manage but, rather, serve as a “potential investor of
taxpayer resources” with the goal of promoting “strong and viable companies.”169 Second, the
Task Force was to “behave in a commercial manner.”170 These dual roles, and their continued
impact throughout the varying stages of bankruptcy and restructuring, are discussed in detail
later in this report.
In evaluating the viability plans submitted by Chrysler and GM on February 17, 2009, the
Treasury auto team acted with the stated goals of achieving the efficient, fair and commercial
restructuring of these two companies, along with helping them rethink their business models and
restructure their balance sheets.171 As required by the original loan agreements executed with the
Bush Administration, the viability plans were evaluated to determine whether the companies and
their subsidiaries “have taken all steps necessary to achieve and sustain the long-term viability,
international competitiveness, and energy efficiency”172 of these companies. As discussed
above, both companies have steadily lost market share, primarily to foreign automotive
companies, over the past thirty years. A major challenge both companies face is therefore
addressing this slippage and designing products that meet consumer demands. As part of this
review process, the Treasury auto team‟s financial advisors performed “sensitivity analyses by
varying the assumptions underlying the [viability] plans.”173 Mr. Bloom stated that these
167
Interview with National Economic Council Director Lawrence H. Summers, Wall Street Journal (June
15, 2009) (online at online.wsj.com/article/SB124388671265573443.html) (hereinafter “Lawrence Summers‟ WSJ
Interview”).
168
Questions for the Record for Ron Bloom, supra note 36 at 4-5. (“Outright failure of GM and Chrysler
would likely have led to uncontrolled liquidations in the automotive industry, with widespread devastating effects.
Importantly, the repercussions of such liquidations could have included immediate and long-term damage to the
U.S. manufacturing/industrial base, a significant increase in unemployment with direct harm to those both directly
and indirectly related to the automotive sector (e.g. dealerships being shuttered, plant closings, supplier failures,
service centers closing, etc.), and further damaged our financial system, as automobile financing accounts for a
material portion of our overall financial activity.”).
169
170
Senate Committee on Banking, Housing, and Urban Affairs, Testimony of Senior Advisor at the U.S.
Department of Treasury Ron Bloom, The State of the Domestic Automobile Industry: Impact of Federal Assistance,
111th Cong., at 5-6 (June 10, 2009) (hereinafter “Ron Bloom Senate Testimony”).
171
Ramifications of Automotive Industry Bankruptcies, Part II, supra note 10 at 1.
172
Chrysler February 17 Viability Plan, supra note 11; GM February 17 Viability Plan, supra note 34.
173
Ron Bloom COP Testimony, supra note 36, at 2-3.
34
viability plans were “very rigorously reviewed and challenged.”174 The review and evaluation of
these viability plans was conducted through the eyes of a “provider of capital”175 and potential
investor – meaning that the Treasury auto team “had an obligation to challenge [Chrysler and
GM] to make sure they were acting in a thoughtful and commercial fashion.”176
c. April – May 2009: Decisions to File for Bankruptcy
The decisions by both Chrysler and General Motors to file for bankruptcy were prompted
by the Treasury auto team‟s viability determinations issued on March 30, 2009, as discussed
above. President Obama noted that the word “bankruptcy” was being used loosely to refer to the
use of the Code, with the backing of the federal government, to help Chrysler and GM
restructure and continue operating in an ordinary course, not a liquidation (where a company is
broken up, sold off, and disappears), or where a company is in litigation for years with no
immediate headway.177
The Treasury auto team‟s articulated objectives with respect to the Chrysler and GM
bankruptcies were to save hundreds of thousands of jobs and to place the companies on a solid
footing to succeed in the future and generate jobs “well into the 21st century.”178 In his testimony
before the Panel at the Detroit field hearing on July 27, 2009, Mr. Bloom stated that the
government-backed bankruptcy reorganizations of Chrysler and GM gave “every affected
stakeholder a full opportunity to have his or her claim heard,” adding that “every creditor will
almost certainly receive more than they would have had the government not stepped in.”179 In
addition, he stated that the Treasury auto team interacted with the various creditors of Chrysler
and GM as a commercial actor would, given the commercial approach it has taken to the
restructuring of these two companies.180
d. June and July 2009 Through the Future: Post-Bankruptcy and Looking Forward
New Chrysler and New GM completed their Section 363 purchases of assets through the
bankruptcy process in June and July, respectively. As the two companies commence operations
as independent companies, Treasury has entered a new phase in the federal government‟s
temporary involvement in the automotive industry. Since the companies are now being run as
commercial enterprises by their management teams and report to new, independent boards of
174
Ron Bloom Senate Testimony, supra note 170, at 8.
175
176
177
178
Ron Bloom Senate Testimony, supra note 170, at 3-4.
179
Ron Bloom Prepared COP Testimony, supra note 78, at 3.
180
Ron Bloom COP Testimony, supra note 36 at 4.
35
directors,181 the roles of the Task Force and the Treasury auto team from now on will be
characterized by moving toward a more passive role with a focus on monitoring the automotive
industry and safeguarding the taxpayers‟ substantial investments. The Task Force and Treasury
auto team‟s goal “is to promote strong and viable companies, which can be profitable and
contribute to economic growth and jobs without government support as quickly as possible.”182
Mr. Bloom has stated that President Obama‟s articulated view of the government‟s
limited role in these companies has two main elements.183
First, while the government has a partial ownership stake in these companies, Treasury
only plans to hold these equity stakes for a limited period of time and plans to dispose of them
“as soon as practicable.”184 Treasury‟s primary goal is to establish viable companies capable of
achieving future profitability.185
Second, Treasury expects to manage its stake in a “hands-off” manner, voting only on
core governance issues, including the selection of directors and other major corporate actions and
181
182
183
The Administration has articulated a set of four guidelines that will govern its approach to managing
ownership interests in financial and automotive companies. These guidelines will determine the government‟s
approach to New Chrysler and New GM and its actions as a shareholder. These guidelines are as follows:
1.
The government has no desire to own equity stakes in companies any longer than necessary, and will
seek to dispose of its ownership interests as soon as practicable. The goal is to establish strong and
viable companies that can quickly be profitable and contribute to economic growth and jobs without
government involvement.
2.
In exceptional cases where the U.S. government feels it is necessary to respond to a company‟s request
for substantial assistance, the government will reserve the right to set upfront conditions to protect
taxpayers, promote financial stability and establish the foundation for future growth. When necessary,
these conditions may include new viability plans similar to those now underway at New Chrysler and
New GM as well as changes to ensure a strong board of directors that selects management with a
sound long-term vision to restore their companies to profitability and to end the need for government
support as quickly as possible.
3.
After any upfront conditions are in place, the government will protect the taxpayers‟ investment by
managing its ownership stake in a hands-off, commercial manner. The government will not interfere
with or exert control over day-to-day company operations. No government employees will serve on the
boards or be employed by these companies.
4.
As a common shareholder, the government will only vote on core governance issues, including the
selection of a company‟s board of directors and major corporate events or transactions. While
protecting taxpayer resources, the government intends to be extremely disciplined as to how it intends
to use even these limited rights.
Ron Bloom Prepared COP Testimony, supra note 78, at 9; White House GM Restructuring Fact Sheet,
supra note 85.
184
185
36
transactions.186 Having appointed its directors, Treasury will now step back until the next time
that the directors are up for election, at which time it will decide whether to retain or replace
these directors.187 In reference to its “hands off” stance, Mr. Bloom has acknowledged that using
GM or Chrysler as an instrument of broader government policy (for example, mandating the
production of certain vehicles, requiring that the automotive companies build more vehicles in
the United States or purchase more parts from U.S. manufacturers) “is inconsistent with these
goals.”188 This also signifies that no government employees will serve on the boards or be on the
payroll of these automotive companies. The Treasury auto team has repeatedly reaffirmed
President Obama‟s commitment to this policy approach,189 and additionally noted the
Administration‟s strong opposition to the amendment to the House Financial Services
Committee appropriations bill that attempts to restore prior Chrysler and GM franchise
agreements.190
The Task Force and Treasury auto team are currently focusing on achieving three
objectives with respect to New Chrysler and New GM: (1) financial restructuring; (2) operational
186
187
At the Panel‟s Detroit field hearing, Mr. Bloom agreed that this is an adequate description of the
government‟s approach. Ron Bloom COP Testimony, supra note 36.
188
Ron Bloom Prepared COP Testimony, supra note 78, at 9. Some environmental activists have raised the
question of whether the automotive companies, having received TARP assistance, should be required to build
“greener” automobiles, in keeping with President Obama‟s focus on climate change. Brian Deese, Special Assistant
to the President for Economic Policy and a member of the Task Force staff, has said that these broader issues are not
the Administration‟s objective. “The question we were focused on was not what larger policy objectives we should
be trying to achieve, but what is a commercially viable restructuring that will allow them to succeed in a way that
they have not in the past.” Michelle Maynard and Michael J. de la Merced, A Cliffhanger to See if a G.M.
Turnaround Succeeds, New York Times (July 26, 2009) (online at
www.nytimes.com/2009/07/26/business/26gm.html).
189
Treasury meeting with COP Staff, July 29, 2009; White House June 1 Remarks on GM Restructuring,
supra note 89. “What we are not doing – what I have no interest in doing – is running GM. GM will be run by a
private board of directors and management team with a track record in American manufacturing that reflects a
commitment to innovation and quality. They – and not the government – will call the shots and make the decisions
about how to turn this company around. The federal government will refrain from exercising its rights as a
shareholder in all but the most fundamental corporate decisions. When a difficult decision has to be made on
matters like where to open a new plant or what type of new car to make, the new GM, not the United States
government, will make that decision.”).
190
Treasury meeting with COP Staff, July 29, 2009; Mr. Bloom also stated that:
[t]he decision to invest taxpayer dollars into these companies required all stakeholders to make
difficult sacrifices, and at this point, it would set a dangerous precedent, potentially raising
enormous legal concerns, to say nothing of the substantial financial burden it would place on the
companies, to intervene into a completed portion of a judicial bankruptcy proceeding on behalf of
one particular group. Political intervention of this nature could also jeopardize taxpayer returns by
making it far more difficult for the companies to access private capital markets if there is ongoing
uncertainty about whether Congress will intervene to overturn judicially approved business
decisions anytime that it disagrees with the judgments of the companies.
Ramifications of Automotive Industry Bankruptcies, Part II, supra note 10, at 6. H.R. 3170, supra note 10,
at sec. 745.
37
restructuring; and (3) cultural changes (i.e., establishment of new boards of directors).191
President Obama has stated that it is the responsibility of each company‟s board of directors and
management team to deliver these results, but that the Treasury auto team, in its role as lender
and investor, will closely monitor the loans and investments made in both companies on an
ongoing basis and work to ensure that the companies are in compliance with commitments they
have made.192
While President Obama‟s stated policy is for the government to dispose of its stakes in
the automotive companies “as soon as practicable,”193 as noted above, the Task Force and
Treasury auto team have declined to provide a more specific timeframe, given their desires to
avoid market disruptions and prevent the dilution or degradation of the value of Treasury‟s
ownership stakes. Treasury “plans to be a responsible steward of taxpayer money,” and will
regularly assess both the public and private options to dispose of its investments.194 The
financial performances of the companies and their return to profitability will play a key role in
Treasury‟s determination as to when to dispose of its ownership stakes. The Treasury auto team
expects that the New GM will undertake an initial public offering (IPO) sometime in 2010
(within the next twelve months), and Treasury will then seek to gradually sell off its shares at an
appropriate time thereafter.195 On the other hand, the Treasury auto team‟s “most likely exit
strategy” for New Chrysler involves either a private sale or a gradual sell-off of shares following
an IPO.196 Mr. Bloom has stated, however, that Treasury will likely begin disposing of its
ownership stake in GM before it does so for its Chrysler stake, but the final decision to proceed
with an IPO is left ultimately in the hands of each company‟s board of directors and will be
heavily dependent on conditions in the general economy and public securities markets.197
When asked to identify the primary metric that the public and policymakers could use to
assess the TARP investments in Chrysler and GM, Mr. Bloom noted that success is best
measured by whether taxpayers see a return of their money.198
As discussed above, President Obama, the Task Force and the Treasury auto team have
articulated at least several different objectives for the government‟s intervention in the
automotive industry. These include preventing the liquidations of the automotive companies and
191
Ron Bloom Prepared COP Testimony, supra note 78.
192
Ramifications of Automotive Industry Bankruptcies Part II, supra note 10, at 2.
193
White House GM Restructuring Fact Sheet, supra note 85.
194
Ron Bloom COP Testimony, supra note 36, at 3.
195
Ron Bloom COP Testimony, supra note 36, at 3. For further discussion describing ways in which
Treasury might divest its ownership stakes in New Chrysler and New GM, see Section G2, infra.
196
197
198
Ron Bloom COP Testimony, supra note 36, at 56-57.
38
the impact these occurrences would likely have on the greater economy, achieving particular
policy goals (such as preventing mass layoffs and fostering energy-efficient automobiles), and
retaining the domestic automotive industry. Given that each of these objectives has been cited at
various times, there is little clarity with respect to what has ultimately driven the decisionmaking behind these interventions.
2. The Intended Impact on the Industry and Economy
As discussed above, the Treasury auto team has focused on fulfilling President Obama‟s
substantial commitment to stabilize the domestic automotive industry. This policy approach is
intended to give Chrysler and General Motors a second chance, help these companies emerge
stronger and more competitive in a changing automotive market, and end the practice of “kicking
the can down the road”199 by refusing to confront the tough problems and decisions facing the
American automotive industry. As President Obama noted in his March 30, 2009 speech on the
automotive industry, “we, as a nation, cannot afford to shirk responsibility any longer. Now is
the time to confront our problems head-on and do what‟s necessary to solve them.”200 The
Obama Administration has acted with the assumption that its actions would create a “new
beginning for a great American industry” that would out-compete the world and be marked by
important innovations in fuel efficiency and energy independence.201 This commitment to assist
the companies with the restructuring processes and procedures necessary to help them achieve
long-term viability has been a central underlying component of every aspect of the Treasury auto
team‟s decision-making.
With respect to the broader economy, the Treasury auto team has aimed to avoid the
devastating impact that the collapse of these companies would have had on countless Americans
and the greater economy beyond the automotive industry in times of severe recession and
financial crisis. As part of this approach, the President and the Treasury auto team have acted to
avoid the prospect of both Chrysler and General Motors entering liquidation, which, they argue,
would have caused “substantial job loss with a ripple effect throughout our entire economy.”202
For example, as a result of both companies achieving a quick restructuring during recent months,
Secretary Geithner has noted that the “economy avoided the devastation that would have
accompanied their liquidation.”203 President Obama has essentially viewed the restructuring of
199
200
201
202
Ron Bloom Senate Testimony, supra note 170.
203
U.S. Department of the Treasury, Statement from Treasury Secretary Geithner on the Presidential Task
Force on the Automotive Industry (July 13, 2009) (online at www.treas.gov/press/releases/tg207.htm) (hereinafter
“Treasury Statement on Automotive Task Force”).
39
Chrysler and General Motors as key elements of the strengthening of American manufacturing
and the stabilization of the national economy.204
Since both Chrysler and GM came to the federal government “in a state of complete
insolvency, facing almost certain liquidation” without further government assistance,205 the
Treasury auto team‟s actions and decision-making need to be considered and evaluated in the
context of existing bankruptcy precedent, process and procedures.
E. Bankruptcy Law Aspects of the Automotive Company Rescues
This section provides a brief introduction to business reorganization in bankruptcy and
summarizes the Chrysler and GM bankruptcy proceedings.
These reorganizations have triggered substantial debate in academic circles. As with
previous reports, the Panel has engaged the assistance of prominent professors to discuss the
technical and legal aspects of this debate in more detail. Papers by Professor Stephen Lubben of
Seton Hall University School of Law206 and Professor Barry Adler of NYU School of Law207
appear as Annexes A and B to this report, and the report has also benefitted from the scholarship
of Professor Mark Roe208 of Harvard Law School and Professor David Skeel209 of the University
of Pennsylvania Law School. Their positions are discussed in Section G of this report.
1. The Options Available to Insolvent Businesses
Until the 1930s, bankruptcy generally meant the liquidation of a firm‟s assets for the
benefit of its creditors. The stock market crash of 1929 caused widespread liquidations and
spurred efforts to reform the bankruptcy laws. Forced liquidations and foreclosures were
harmful to both creditors and debtors. Debtors were not given an opportunity to pay their debts,
the going-concern value of the business was destroyed, and employees lost their jobs. During
this time, creditors recovered only a fraction of the amount they were owed. From 1933-1934,
the laws were changed so that corporations could obtain bankruptcy court protection and modify
204
205
Ron Bloom COP Testimony, supra note 36 at 23-24.
206
Professor Stephen Lubben is the Daniel J. Moore Professor of Law at Seton Hall. He specializes in
corporate finance, particularly issues concerning corporate debt and financial distress.
207
Professor Barry E. Adler is the Bernard Petrie Professor of Law and Business and Associate Dean for
Information Systems and Technology at New York University School of Law. His areas of research include
bankruptcy, contracts, corporate finance, and corporations.
208
Professor Mark J. Roe is the David Berg Professor of Law at Harvard Law School. His scholarship
includes issues in corporate law, corporate finance and corporate bankruptcy and reorganization.
209
Professor David A. Skeel is the Samuel Arsht Professor of Corporate Law at the University of
Pennsylvania Law School. His areas of expertise are bankruptcy and corporate labor law.
40
their debts.210 Although the reform was designed to address the market crisis during the Great
Depression, it remained in place after the Depression was over and became the precursor for
business reorganization under Chapter 11 today.211
a. Liquidation
In some countries, the only option when a business is unable to meet its obligations is to
dissolve the business, liquidate its assets and distribute the proceeds of that liquidation to the
business‟s creditors. The Code attempts to preserve economic value by permitting a viable
business to attempt to reorganize and operate as a going concern. If that is not possible, the Code
allows the estate to sell the business as a going concern, to break it up into viable parts, or to
create an orderly liquidation. Some businesses that attempt to reorganize under Chapter 11
ultimately fail. Some businesses that are in serious enough trouble do not even attempt Chapter
11 reorganization, and instead liquidate in Chapter 7 under the supervision of a court-appointed
trustee.212 Others will wind up their business operations without any bankruptcy proceeding,
simply disappearing from the economy.
b. “Traditional” Chapter 11 Reorganization
Chapter 11 permits a troubled company to continue its business as a going concern while
it restructures its debts. The purpose of Chapter 11 is to preserve economic value, minimizing
the impact of a business‟s failure on both its creditors and those who depend on the business,
such as the employees and suppliers. Considering the intangible value of the business, such as
business relationships, name recognition, and synergy created by the productive use of resources,
there may be more value in a business as a going concern than in liquidation. This value is
destroyed in liquidation, and the price the business‟s assets would realize in liquidation is often
very low compared to the value they would have as a part of a productive whole. Liquidation
value for a troubled business is generally less than the total amount of the business‟s outstanding
debt. Creditors may receive more value from reorganization than from liquidation.
Additionally, parties other than creditors, such as employees, gain more from the business‟
continuance. Consequently, when a business has any chance of continuing as a going concern,
210
For a discussion of the history of bankruptcy legislation in the United States, see David A. Skeel, Debt's
Dominion: A History of Bankruptcy Law in America (Princeton University Press 2003).
211
11 U.S.C. 101 et. seq. (2009). For an explanation of the basic bankruptcy concepts referenced in this
report, please see David G. Epstein & Steve H. Nickles, Principles of Bankruptcy Law (Thomson/West 2007).
212
Chapter 7 of the Code addresses the liquidation of a business. 11 U.S.C. §§ 701-784 (2009). In cases
where efforts to reorganize under Chapter 11 fail, such cases may be converted into Chapter 7 liquidation cases.
Although liquidation of the debtor is primarily the function of Chapter 7, liquidation may also occur under other
chapters. For instance, a Chapter 11 plan could provide for the partial or complete liquidation of a business.
41
public policy213 and the best interests of the creditors214 dictate that it should be given a chance to
recover while being protected from its creditors‟ actions to collect.
In Chapter 11 reorganization, the business‟s debts are restructured. Each creditor is
entitled to receive the present value of the amount that creditor would have received in
liquidation. The bankruptcy court is required to protect the best interest of each individual
creditor during reorganization. This requirement is known as the “best interest” test. The
consideration the creditors receive under this standard may be paid over time with interest from
the time that the plan of reorganization is confirmed. Any debt that exceeds the amount the
creditor is entitled to in liquidation may be discharged in bankruptcy. In fact, however, many
Chapter 11 plans offer to pay the creditors more than they are specifically entitled to, in part to
attract the support of the creditors as they vote, by class, for or against the plan of reorganization,
as described in more detail below.
In addition to (or in substitution for) repayment of debt, creditors may also be issued
shares of stock or other ownership interests in the reorganized debtor to satisfy their claims. As a
consequence, the capital structure of the pre-bankruptcy business may look very different after
undergoing restructuring under Chapter 11.
In a traditional corporate reorganization, the restructuring process begins when the debtor
files a bankruptcy petition215 with the bankruptcy court. The petition asks for bankruptcy relief,
and includes detailed schedules of the business‟ income, assets, and liabilities. Upon filing the
petition, all the business‟ legal and equitable interests in any property are transferred to a new
entity, which is known as the bankruptcy estate.216 All the assets of the newly created
bankruptcy estate instantly come under the full protection of the Code.217 Most importantly, the
rights of creditors, and the order of priority by which they will be paid, are locked into place.
Also at the time of filing, bankruptcy law imposes an automatic stay against all attempts
by creditors to collect from the debtor. This allows the debtor to continue its ordinary business
operations and the Chapter 11 reorganization to proceed in an orderly manner. The Code sets
out rules for a collective system to coordinate the actions of the various creditors. In doing so,
213
Considering that keeping a business in operation is often much more desirable than liquidating it, the
fundamental premise of Chapter 11 of the Code is that reorganization is desirable. Mark S. Scarberry, Kenneth N.
Klee, Grant W. Newton & Steve H. Nickles, Business Reorganization in Bankruptcy (2006).
214
Upon filing the bankruptcy petition, the Code requires the business to be run for the benefit of the
creditors. The shareholders will recover their investment only in the unlikely event that all the valid claims of all
creditors are paid in full and value remains in the business.
215
In theory, creditors could file an involuntary petition to force a business into bankruptcy, but this is
extremely rare. 11 U.S.C. § 303.
216
11 U.S.C. § 541.
217
11 U.S.C. § 362(a).
42
the Code permits the overall value of the business to be maximized by lowering both the
business‟s losses and the costs of addressing the creditors‟ collection actions.
At the moment of the bankruptcy filing, creditors‟ claims against the debtor become
claims against the bankruptcy estate. Claims against the estate are entitled to different levels of
statutory priority, with some claims having seniority over others.218 The order of priority is
significant because priority determines the order in which claims against the bankruptcy estate
will be satisfied. Shareholder interests, following behind secured and unsecured claims, have the
lowest level of priority in a bankruptcy estate. Under the absolute priority rule,219 shareholders
are often wiped out and receive nothing in a Chapter 11 reorganization or a Chapter 7
liquidation.
The Code treats secured and unsecured creditors very differently. Secured creditors –
those whose debts are secured by collateral in advance of the bankruptcy – hold a secured claim.
The value of the secured claim is limited by the value of the collateral. If the secured claim is
less than or equal to the value of the collateral that relates to that debt, the claim is fully secured
and the secured creditor will recover its money entirely. If, however, the debt is greater than the
value of the collateral, the creditor will receive the value of the collateral, and the balance of the
debt becomes a general unsecured claim to be paid pro rata way with the other general unsecured
claims against the debtor.
Generally, the business does not have enough value to pay unsecured claims in full.
Instead, unsecured creditors often receive a pro rata distribution on account of their claims.
However, not all unsecured creditors are treated exactly the same. Some unsecured claims, such
as certain taxes and unpaid employee wages,220 will be paid ahead of the general class of
unsecured creditors.
The general unsecured creditors form a creditors‟ committee. The creditors‟ committee
monitors the activities of the individual or entity managing the debtor‟s business, which may be a
trustee, but is more likely to be the debtor-in-possession (DIP). When a business files for
bankruptcy, the management team automatically becomes the management of the DIP, and
continues to run the business. Old management, however, may not remain in place for long.
Studies show that management is frequently replaced just before or after filing.221 A party that
218
The seniority of claims may also be determined by contractual agreement between creditors, when, for
example, two creditors agree that one will subordinate its claim to the other.
219
The absolute priority rule, simply stated, refers to the requirement that unless a dissenting class of
creditors receives or retains property of a value equal to the allowed amount of its claims, no creditor of lesser
priority, or shareholder, may receive any distribution under the plan. 11 U.S.C. §1129(b)(1).
220
11 U.S.C. § 507.
221
Elizabeth Warren, Chapter 11: Reorganizing American Business, 61 (Aspen Publishers 2008).
43
is willing to provide financing after the business files bankruptcy will often have a substantial
say in many aspects of the business, including appointing new management.222
After the petition is filed, any new monies coming into the bankruptcy estate are not
bound by the rules constraining the assets of the pre-bankruptcy debtor. There are two basic
reasons for the disparate treatment of incoming funds of the pre-bankruptcy and the postbankruptcy debtor: (1) to attract new investment into the business (investors are unlikely to
invest if they believe their funds would only be used to pay off old debt); and (2) to permit the
business to find funding for a new business plan.
While undergoing Chapter 11 reorganization, the DIP must continue to operate the
business as a going concern and protect it from disruptive interference. To do so, the DIP may
use cash generated by the business and it may also seek DIP financing, new financing that is
generally secured by assets of the post-bankruptcy debtor. Considering the risk that a business
already in bankruptcy may eventually fail, it is often difficult, if not impossible, to find a lender
willing to provide substantial post-petition financing to a distressed company on an unsecured
basis. To encourage lenders to provide DIP financing, the Code provides that post-petition loans
will be given seniority and preferential treatment over other claims.223
Unlike the prepetition creditors who have already invested in the business, the postpetition lenders bring fresh capital to the struggling enterprise. Because no post-petition lender
is required to lend to the business and because dealing with bankrupt businesses is often regarded
as quite risky, the leverage of the DIP lender is extremely high.224 Some refer to DIP lenders as
following the Golden Rule: Those with the gold make the rules.225 There are no statutory limits
on the conditions that DIP lenders may impose on the business. Instead, DIP lending can be
undertaken only if the other creditors are given an opportunity to object and the court, after
hearing those objections, approves of the financing and the terms on which the financing is
222
Id.
223
11 U.S.C. § 364(a) - (b). For example, DIP financing is often considered an administrative expense,
which is entitled to payment in full in cash under 11 U.S.C. § 1129(a)(9)(A) on the effective date of a Chapter 11
plan of reorganization unless agreed otherwise.
224
Sarah Woo, an SJD candidate at Stanford Law School, writes, “A concern often raised in relation to the
U.S. bankruptcy regime is the high level of control over proceedings enjoyed by secured lenders. In particular,
through the use of the arsenal of provisions in debtor-in-possession (DIP) financing, secured lenders can quickly
effectuate asset sales. While this strategy minimizes the time taken to realize cash recoveries for the secured lenders,
it may not maximize the value of the estate for all creditors.” Sarah P. Woo, Debtor-in-Possession Financing:
Looking Beyond the Debtor (Aug. 1, 2009) (abstract available online at
papers.ssrn.com/sol3/papers.cfm?abstract_id=1442854).
225
A liquid market for DIP loans would temper the DIP lender‟s leverage in the reorganization process by
providing the debtor with alternative offers for DIP financing. While this may be the case in more traditional
reorganizations, at the time Chrysler and GM filed bankruptcy the capital markets were experiencing a credit freeze
and the amount of money needed to reorganize the auto companies was very large. This allowed any DIP financer
that stepped forward more leverage than it may have had under ordinary circumstances.
44
proposed. If the court approves the terms of a DIP loan, then the loan, with all its contractual
conditions, binds the bankruptcy estate.
Because of its leverage, a DIP lender may have the power to decide which contracts –
with suppliers, vendors, dealers, etc. – it wishes the estate to assume and which contracts it
wishes the estate to reject.226 This is particularly true where the DIP lender is also the expected
buyer at the 363 sale. The DIP also has the power to shape the proposed plan of reorganization
and to condition its funding on the court‟s approval of such plan or another plan the DIP
endorses.
The Code sets out the process by which creditors vote on Chapter 11 plans, and it
provides some protection to dissenting creditors. Plans deal with creditors by classes.227 Each
unsecured creditor is placed into a class with other creditors that have legally-similar claims. As
discussed above, claims are treated differently depending on statutory and contractual priority.
Within each class, all creditors must receive the same treatment. The creditors vote on the plan
by class. A class is deemed to have accepted a plan if creditors constituting a majority of the
claims in the class by number and representing at least two-thirds of the dollar amount of debt
owed to that class vote in favor of the plan.228 Because of the need to have each class vote in
favor of a plan, the allocation of creditors into classes can become the subject of extensive
debate.229 Within a class, dissenting creditors are bound by the majority vote of their class.
Under certain circumstances, a class of dissenting creditors may nonetheless be required to
accept confirmation of the proposed plan.230
If all classes of creditors have consented to the plan, the bankruptcy court inquires into
the feasibility of the plan and whether the plan is proposed in good faith, and then typically
confirms the plan. Section 1129 of the Code provides that the court may confirm the plan only if
it meets with the many procedural requirements and safeguards of the Code, including, among
many other things, adherence to the priority of classes of creditors.231
The absolute priority rule, the best interests test and the opportunity to vote constitute the
major protections for creditors in a Chapter 11. These protections, however, are tempered by the
impact of majority vote that binds dissenters and the sharp distinction between prepetition
creditors and post-petition DIP financers.
226
If repudiation or cancellation of the contract results in a breach of contract, claims for that breach
become unsecured debt of the estate. 11 U.S.C. § 365(g)(1). Debts of the estate, as contrasted with debts of the
prepetition debtor, must be paid in full ahead of other unsecured claims.
227
11 U.S.C. § 1122.
228
11 U.S.C. §1126(c).
229
See infra Section (G)(4) of this report.
230
11 U.S.C. § 1129(b).
231
11 U.S.C. § 1129(a)(1).
45
c. Sales under Section 363
As part of the reorganization effort, a debtor may propose to sell some or all of its assets
during the course of the Chapter 11. This sale, conducted under Section 363(b) of the Code and
known as a “363 sale,” authorizes a DIP to sell property of the estate232 outside the ordinary
course of business.233 The proceeds from a 363 sale may be used to fund the continuing
operation of the debtor or to raise capital to pay creditors as part of a plan of reorganization. The
use of 363 sales has evolved in recent years. Today, 363 sales often dominate the resolution of a
Chapter 11 case by selling all or substantially all of the assets of the business and leaving only
the remainder of the assets for distribution in the Chapter 11 plan.
In bankruptcy, the sale of assets under Section 363 offers substantial advantages over the
sale of assets under state law. Under Section 363, the assets are sold “free and clear” of all liens
if the sale satisfies one of the section‟s enumerated conditions.234 This means a buyer gets clear
title to the assets, whereas under state law, creditors‟ claims may cloud the title of the sold assets.
Creditors‟ claims to assets sold by failing businesses are particularly worrisome to buyers, thus
making bankruptcy protection and 363 sales particularly valuable tools. 363 sales permit the
estate to transfer assets for their best and maximizing use, for the ultimate benefit of the
creditors.
A 363 sale can be held in a relatively short time. Because the sale separates any disputes
over the distribution of assets (arguments among creditors) from the process of realizing the
maximum value of the estate (sale of the assets), the 363 sale often maximizes the total value of
the assets. Once a business has filed for bankruptcy protection, both debtors and creditors often
prefer the speed of 363 sales to the potentially long and drawn out traditional Chapter 11 plan
confirmation process. Thus, 363 sales have been frequently used to resolve large bankruptcies
since the mid 1990s.235
232
11 U.S.C. § 1107(a).
233
11 U.S.C. § 363.
234
11 U.S.C. § 363(f). (“The trustee may sell property… free and clear of any interest in such property of
an entity other than the estate, only if (1) applicable nonbankruptcy law permits sale of such property free and clear
of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold
is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such
entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest.”)
235
Stephen J. Lubben, No Big Deal: The Chrysler and GM Cases in Context, (Sept. 1, 2009) (hereinafter
“No Big Deal: The Chrysler and GM Cases in Context”) (“[I]n the past ten to fifteen years, secured lenders have
used [Section 363], plus the control inherent in being a secured lender – particularly control over the debtor‟s cash,
to take charge of chapter 11 cases…The lenders are willing to fund a quick sale because Section 363 provides a
better mechanism for selling assets than state foreclosure law...The basic structure used to reorganize both GM and
Chrysler was not unprecedented. Indeed, it was entirely ordinary…The notion that the speed of the sale was unique,
or that the use of Section 363 to effectuate a quick sale was novel, is therefore without merit.”).
46
Section 363 does not limit the type or amount of the assets that may be sold. The courts,
however, have developed rules against sub rosa plans, that is, reorganization plans disguised as
sales. These courts reason that such uses of 363 would undermine the Chapter 11 rules.236
In 363 sales, designated assets of the debtor are sold to a purchaser. That sale is subject
to approval by the bankruptcy court, which examines whether the sale is a sub rosa
reorganization plan.237 If the court grants approval, the sale will be executed and the purchaser
will typically receive the assets free and clear of any liens.
Once the purchaser pays the purchase price, typically either in cash or in the form of a
credit bid,238 the purchase price becomes part of the bankruptcy estate to be distributed to
creditors in accordance with the Code‟s priority rules. Thus, a 363 sale comprises two parts: (1)
a sale of assets to a new company, and (2) a distribution of the purchase price to the creditors of
the old debtor.
Some media reports have conflated these two stages, causing confusion regarding the
distribution rights under Chapter 11 by referring to an “exchange” of assets. In the case of GM,
as a matter of law, there was no “exchange” of equity in New GM for claims against Old GM.
Rather, there was a 363 sale of the assets of Old GM (the bankruptcy automotive company) that
were purchased by New GM (the company formed to buy the assets and financed by the
Treasury). As a part of this transaction, New GM also assumed certain liabilities of Old GM.
The assets purchased and liabilities assumed from Old GM were used to form New GM, an
entirely new entity that is legally unrelated to Old GM.
In the case of Chrysler, the 363 sale was structured in a similar manner and had
substantially similar effects. The bankruptcy court in its Chrysler opinion noted,
[T]he UAW, VEBA, and Treasury are not receiving distributions on account of
their prepetition claims [against Old Chrysler]. Rather, consideration to these
236
Section 363 has been used to accomplish a sale of all or a substantial part of the debtor‟s assets in a
single transaction. Such sales can effectively reorganize the debtor without complying with the normal process of
preparing a disclosure statement and giving creditors the opportunity to vote on the plan. However, the courts
generally permit such sales if there is a sound business purpose for the transaction, unless aspects of the sale
restructure the priority and other rights of creditors. Committee of Equity Sec. Holders v. Lionel Corp. (In re Lionel
Corp.), 722 F.2d 1063 (2d Cir. 1983); Pension Benefit Guar. Corp. v. Braniff Airways, Inc. (In re Braniff Airways,
Inc.), 700 F.2d 935 (5th Cir. 1983).
237
A sale is considered a sub rosa plan if it is essentially a de facto plan that disposes of assets and pays
creditors without a formal disclosure statement, written plan, or a meaningful opportunity for creditors to participate
in the negotiation and voting processes. See Section (H)(4) of this report, discussing factors courts use to determine
whether a 363 sale is in fact a sub rosa plan.
238
Credit bidding is a mechanism used in bankruptcy by which a creditor with a valid security interest in
the assets being sold may bid for such assets by proposing to offset its claim against the purchase price of the assets.
The ability to credit bid gives the lien holder protection against an attempt to sell its collateral too cheaply. 11
U.S.C. § 363(k).
47
entities is being provided under separately-negotiated agreements with New
Chrysler.239
The aggregate result of reorganizations involving 363 sales may well be that an
unsecured creditor of the bankrupt debtor becomes a large shareholder of the entity purchasing
the assets in the sale.240 This undoubtedly has major policy implications, to be discussed in
further detail below.241 However, understanding that these transactions are two separate
commercial transactions and that legally there is no exchange of old claims for interests in the
purchasing company is crucial to understanding the policy debate that ensues.
Proceeds resulting from a 363 sale are distributed to creditors of the bankruptcy estate in
strict accordance with the Code‟s priority laws. By contrast, the purchaser of the assets may deal
with those assets in any way it chooses. Typically, the purchaser of a bankrupt business‟s assets
– whether structured under Section 363 or under a confirmed plan of reorganization – allocates
its resources in a manner it believes will make its business profitable. If, for example, the
purchaser needs to continue ordering from the bankrupt business‟ trade creditors, then the
prepetition trade creditors may be paid in full by the purchaser, even though the trade creditors‟
pro rata distribution in the debtor‟s Chapter 11 is very small. Similarly, if the purchaser needs to
retain the debtor‟s employees, the purchaser may negotiate a deal that gives the employees
substantial interests in the new businesses, in excess of what the employees may have recovered
under the debtor‟s Chapter 11 distribution.
Neither bankruptcy laws nor the courts are empowered to control the manner in which
assets purchased in a 363 sale are subsequently used by the purchaser in its business. To the
extent employees, suppliers, and others with relationships that have carried over from the debtor
to the purchaser received more favorable treatment than those whose relationships terminated
with the bankruptcy estate, this perceived disparity has a clear business reason; i.e., the purchaser
needs to maintain these relationships to make its business viable.242
239
In re Chrysler LLC, et al., 405 B.R. 84, 99 (Bankr. S.D.N.Y. 2009).
240
Professors Roe and Skeel question whether Chrysler was in fact sold or whether the transaction
constituted sub rosa plans of reorganization. In particular, they argue that because many of Old Chrysler‟s creditors
are now creditors of New Chrysler, Chrysler‟s 363 sale is more accurately portrayed as a reorganization. Mark J.
Roe & David A. Skeel, Assessing the Chrysler Bankruptcy, 21-24 (Aug. 12, 2009) (online at
ssrn.com/abstract=1426530) (hereinafter “Assessing the Chrysler Bankruptcy”). The bankruptcy court and Second
Circuit Court of Appeals specifically found that the 363 sale was not a sub rosa plan. Discussed in more detail in
Section (G)(4) of this report below.
241
See Section (G)(4) of this report.
242
With respect to the Chrysler bankrtupcy, Professors Roe and Skeel question whether the decision to pay
Old Chrysler‟s debts with the assets of New Chrysler was made after the conclusion of the 363 sale or whether such
payment was a de facto condtion to the conclusion of 363 sale. They argue that while the former situation is
justifiable, the latter may violate the principles underlying the Code. Assessing the Chrysler Bankrtupcy, supra note
240 at 21-24. This argument is discussed in more detail in Section (G)(4) of this report below.
48
2. How the Chrysler and GM Reorganizations Compare With Other Large
Reorganizations
The Chrysler and GM reorganizations involve huge companies.243 When such massive
entities are involved, there inevitably will be a number of issues that must be handled on a caseby-case basis. Because there is no one-size-fits-all bankruptcy for multi-billion dollar
companies, it is difficult to categorize the Chrysler and GM bankruptcies as being either typical
or atypical.
A few aspects of the Chrysler and GM bankruptcies distinguish them from comparable
restructurings. First, the involvement of the U.S. government was unique. While legally
irrelevant because the law is applied to the government in the same way it is applied to a private
party, the government‟s involvement invites higher scrutiny and closer analysis to ensure that it
is treated no better–and no worse–than an ordinary investor. As the automotive companies‟
condition deteriorated, the government provided both pre- and post-petition financing. On
account of the government‟s prepetition claim, it had the rights of a prepetition creditor entitled
only to distributions from the bankruptcy estate in accordance with priority rules under Chapter
11. On account of its post-petition claim, the government had the power and leverage as a DIP
financer, as previously discussed, 244 and its claims were given such preferential treatment. 245
Because Treasury played an important role in negotiating the restructuring of the automotive
companies,246 it appears to have exercised some of its bargaining power as a DIP lender.
Second, the automotive bankruptcies proceeded with greater speed than was expected. Creditors
nearly always push for speed in Chapter 11 reorganization. In fact, debtors will often file prepackaged bankruptcies247 in order to shorten the traditional process of confirming a
reorganization plan. The expediency of the Chrysler and GM 363 sales may be attributed to the
243
GM was ranked ninth in Fortune Magazine‟s Global 500 in 2007, with annual revenues topping $182
billion and more than 250,000 employees. Global 500: Nine – General Motors, Fortune (accessed Sept. 2, 2009)
(online at money.cnn.com/magazines/fortune/global500/2008/snapshots/175.html). At the end of 2007, Fortune
magazine listed Chrysler as the fourth largest private company in the U.S. with $49 billion in annual revenue and
72,000 employees. The 35 Largest U.S. Private Companies, Fortune (accessed Sept. 2, 2009) (online at
money.cnn.com/galleries/2008/fortune/0805/gallery.private_companies.fortune/4.html).
244
See Section (E)(1)(b) of this report.
245
Id.
246
Documents that Treasury provided to the Panel showed that Task Force members were involved in a
variety of decisions with respect to the planning of the bankruptcy process, the structure of the asset sales, and the
formation of the New Chrysler and New GM entities.
247
A pre-packaged bankruptcy (pre-pack) is a plan for reorganization prepared in advance in cooperation
with creditors that will be filed soon after the petition for relief under Chapter 11. Debtors do this to shorten and
simplify the bankruptcy process and save the company money for professional fees and other costs associated with
bankruptcy. The sooner the restructuring under Chapter 11 is completed, the sooner the company can return focus
to its core operations. Some of these pre-pack reorganizations are extremely large, but can nevertheless be
accomplished in less than two months.
49
care with which the bankruptcy package was assembled, leaving little need for additional
procedures and negotiation. Nevertheless, Professors Roe and Skeel comment:
The Chrysler chapter 11 proceeding went blindingly fast. One of the larger
American industrial companies entered chapter 11 and exited 42 days later.
Clearly speed was achieved because of the governments‟ cash infusion of $15
billion on noncommercial terms into a company whose assets were valued at only
$2 billion. As a matter of bankruptcy technique, the rapidity of the Chrysler
chapter 11 was a tour de force.248
While the speed was noteworthy, it was not unprecedented. The use of prepacks grew
with astonishing speed among large companies in the early 1990s, with bankruptcies wrapped up
in a matter of weeks. In 1993 about 21 percent of the bankruptcies of publicly traded companies
were prepacks, with 1994 not far behind at 17 percent.249 The numbers have leveled off since
then, now down to an estimated 4 percent of all filings.250
To date, however, neither the GM nor Chrysler bankruptcy cases have closed. Both
debtors, Old GM and Old Chrysler, remain to be wound up, and the proceeds of the 363 sales
and any remaining assets will be distributed to each company‟s remaining creditors. In any
statistical analysis of Chapter 11 cases, both bankruptcies would be listed in the “pending”
category, with the days in bankruptcy continuing to mount. Professors Roe and Skeel use the
term “exit” to loosely refer to the 363 sale, which arguably constitutes the key transaction of the
reorganization and the bulk of the restructuring process for these two businesses. Some have
argued that the use of Section 363 of the Code makes these bankruptcies unusual. Nevertheless,
as discussed above, sales for substantially all a debtor‟s assets are an increasingly popular use of
this Section 363.251 The significance of the use of Section 363 of the Code is a subject of debate,
even among bankruptcy scholars, as discussed in greater detail below.252
3. The Choices Available to Creditors of an Insolvent Business
Creditors of a troubled business must make decisions at several points during the
company‟s decline. When the business first runs into trouble, there are usually negotiations
between the debtor and individual creditors. As conditions deteriorate, creditors may join forces
or the debtor may bring them together. At some point, the focus of creditors shifts, from trying
to make sure that their debt is repaid in full or in part, to calculating what they would get if the
248
Assessing the Chrysler Bankruptcy, supra note 240 at 1.
249
2004 Bankruptcy Yearbook 162.
250
Elizabeth Warren & Jay Lawrence Westbrook, Law of Debtors and Creditors (2009).
251
Id. at 8.
252
See Section (G)(4) of this report.
50
debtor filed for bankruptcy, and then to establishing what particular type of bankruptcy
arrangements would best suit the creditor.
Because the purpose of Chapter 11 protection is to try to preserve economic value, it
seems logical that most creditors would prefer that the debtor try to reorganize and operate as a
going concern, rather than proceeding to liquidation. Other factors may be at work. For
example, some years ago Professor Henry Hu noted unusual behavior patterns on the part of
some creditors in bankruptcy proceedings.253 Those creditors seemed to favor liquidation, in
which they would receive less money, over reorganization. Professor Hu and others have
theorized that these creditors may have entered into credit default swaps, in essence buying
insurance against the debtor‟s failure, and thus causing them to favor liquidation and distort more
typical creditor expectations.254 Credit default swaps do not appear to have played a significant
role in the automotive company reorganizations, but they serve as a reminder that the interests of
particular creditors can be far more complex than those assumed by any simple model.
As discussed above, in bankruptcy, secured creditors look to their collateral, and
unsecured creditors are organized into groups of similarly situated creditors, who vote by class
with respect to proposed plans of reorganization. When substantially all the debtor‟s assets are
sold in a 363 sale, creditors may object to the sale and the court will hold a hearing before ruling
on whether the sale may go through. There is no creditor vote in a 363 sale, although the courts
carefully weigh the objections and the support of the creditors in deciding whether to approve a
sale. Following the sale, the remainder of the Chapter 11 case involves the allocation of the
proceeds of sale to the creditors.
Many creditors supported–or failed to object–to the proposed 363 sales in both Chrysler
and GM. There has been some discussion as to whether certain creditors, especially the secured
creditors in Chrysler who were recipients of TARP funds, may have felt obligated to acquiesce in
the government‟s restructuring plans, either tacitly or owing to direct government pressure.
Because creditors are not given the right to vote on sales,255 any such acquiescence would be in
the form of refraining from challenging the sales, and it is difficult to attribute motive to inaction.
The Treasury auto team has denied applying any such pressure.256 In other contexts, many
253
Henry T. C. Hu, Abolition of the Corporate Duty to Creditors, 107 Colum. L. Rev. 1321, 1402 (2007).
Hu‟s article introduces the concept of the “empty creditors,” who reduce or eliminate their economic exposure
through coupled assets such as credit derivatives and thus behave differently from more traditional creditors). See
also Stephen J. Lubben, Credit Derivatives & The Future of Chapter 11, 81 Am. Bankr. L.J. 405 (2007) who notes
“[t]he operation of chapter 11 is premised on a perception of ownership that may no longer exist or is at the very
least threatened by the expansion of credit derivatives.”
254
Special Comment: Analyzing the Potential Impact of Credit Default Swaps in Workout Situations,
Moody‟s Global Banking (June 2009) (online at www.moodys.com).
255
There was, however, an informal vote of the unsecured creditors in GM. GM Press Release, GM
Announcement on Bondholder Support (May 31, 2009) (online at media.gm.com/servlet/GatewayServlet?target=
image.emerald.gm.com/gmnews/viewmonthlyreleasedetail.do?domain=74&docid=54613).
256
Ron Bloom COP Testimony, supra note 36.
51
TARP recipients have been quite vocal in their criticism of government actions that they
disapprove of, suggesting that if they objected to the 363 sales, they would have made their
views known.257 It is possible that the creditors did not object because they believed it was in
their own economic best interests. They may have believed that the 363 sales would give them
the best deal possible, and that the likely alternative would be a liquidation of the companies that
would result in far smaller payouts.
Academics have argued that the bidding process in both the Chrysler and GM
bankruptcies was flawed because the court approved of a bidding structure that required that any
bidder must assume certain designated liabilities of the debtors.258 They argue that this may have
prevented a true valuation of both companies, thereby obscuring the amount of potential return
for the creditors in the event of liquidation.259 These arguments are more thoroughly discussed
in Section E4 below.
4. The Impact of these Transactions on the Financial Markets
Some would view the Chrysler reorganization as a government intervention that resulted
in the transfer of value from one group to another based on political considerations. Or, to
borrow the description of one participant, the assets of retired Indiana policemen were given to
retired Michigan autoworkers.260 They argue that not only is Chrysler a bad result, but that the
Code was undermined in terms of the treatment of secured creditors under bankruptcy, and, as a
result, the case could have adverse effects on the capital markets.261 Similarly, financial experts
such as Warren Buffett have stated that the federal government‟s actions in the bankruptcies can
have “a whole lot of consequences” for deal making.262 According to Buffett, if priorities are
tossed aside, “that‟s going to disrupt lending practices in the future. If we want to encourage
257
For instance, New York Times notes Jamie Dimon is “quick to criticize the administration.” In
Washington, One Bank‟s Chief Still Holds Sway, New York Times (July 20, 2009) (online at
dealbook.blogs.nytimes.com/2009/07/20/in-washington-one-bank-chief-still-holds-sway/#more-90287).
258
See generally Barry E. Adler, What‟s Good For General Motors (Sept. 1, 2009) (hereinafter “What‟s
Good for General Motors”); Assessing the Chrysler Bankruptcy, supra note 240.
259
An illustration of how the bidding process may have obscured the underlying mechanics of the
transaction is as follows. If a bidder determines that the gross assets of Company X have a fair market value of
$100, the bidder may reasonably enter a bid of up to $100 for the assets, representing $100 fair market value of the
assets, with no assumed liabilities. If the bidding process, however, requires the bidder to assume $20 of the
liabilities of the seller, the bidder may reasonably enter a bid of up to $80 for the assets, that is, $100 fair market
value of the assets, less $20 of assumed liabilities. In the latter case the seller has $80 to distribute to its creditors,
while in the former it would have $100. If the $20 liability was owed to a junior creditor, it would be possible that a
creditor of the seller may not recover its full claim, assuming the $80 would be insufficient, even though the $20
owed to the junior creditor was paid in full.
260
Congressional Oversight Panel, Testimony of Indiana State Treasurer the Honorable Richard E.
Mourdock, Financial Assistance Given to the Domestic Automobile Industry Via Treasury‟s Automotive Industry
Financing Program (July 27, 2009) (online at cop.senate.gov/documents/testimony-072709-mourdock.pdf).
261
What‟s Good For General Motors, supra note 258.
262
Assessing the Chrysler Bankruptcy, supra note 240.
52
lending in this country, we don‟t want to say to somebody who lends and gets a secured position
that the secured positioning doesn‟t mean anything.”263
The Panel‟s mandate includes looking at the impact of Treasury decisions on the
financial markets, and thus the staff of the Panel consulted with academics and market
participants to determine whether predictions that the Chrysler decision would result in changes
in market behavior or the cost of capital that were (1) accurate and (2) measurable. The worry is
that if the markets perceive that government intervention might, in some cases, interfere with the
absolute priority rule of bankruptcy, investors will demand a higher return on their capital to
compensate for the added uncertainty. The consequence would be higher borrowing costs for
business and a corresponding decline in capital investment for businesses facing a possible
bankruptcy. On the other hand, the infusion of cash into a business that otherwise seemed
destined for liquidation may make government involvement more attractive for investors and
may reduce the capital in otherwise high-risk transactions. Unfortunately, apart from academic
opinion, there is little evidence, empirical or anecdotal, to prove or disprove the claim that the
Chrysler bankruptcy had any effect on the market.
Academics and practitioners with whom the Panel‟s staff have spoken seem to believe
that it is both too early and, given the number of variables, perhaps not possible to conclude one
way or another as to what effect the government‟s involvement in the Chrysler bankruptcy will
have on credit markets going forward. Given the currently impaired state of the credit markets
generally, they argue, it would be difficult to attribute any anomalies to the outcome of a specific
bankruptcy transaction. On the other hand, Treasury‟s involvement in the Chrysler bankruptcy,
as well as the General Motors bankruptcy, where the Chrysler approach was mirrored, is likely to
cause investors to reevaluate their risk assessment regarding certain companies with similar
characteristics. Large, industrial, heavily unionized companies, especially those with significant
liabilities in the form of pension or healthcare obligations, might be considered to be of special
interest to the government. The cost of capital going forward for companies with similar
characteristics might go up or down depending on how future creditors view the outcome of the
Chrysler bankruptcy – whether government intervention left creditors with more, the same, or
less than they would have received without such intervention.264
F. Following the Money
1. What has TARP Spent so Far and What Can Taxpayers Expect to get Back?
Earlier in this report the Panel describes the financial transactions and the outcomes of
the bankruptcy proceedings for Chrysler and GM including all “parties in interest” – the United
263
264
Assessments of how government action will affect the outcome of a particular investment are often
described as political risk assessments. Generally, political risk refers to the kinds of issues that political decisions
in government create for business planners.
53
States and Canadian governments, the UAW, the UAW Trust, equity holders, and creditors.
This section focuses solely on the financial stake of U.S. taxpayers. As shown in Figure 3
below, U.S. taxpayers have expended $49.9 billion of TARP funds in conjunction with GM‟s
bankruptcy and the subsequent creation of New GM. The Chrysler transactions have expended
$14.3 billion of TARP funding, of which $10.5 billion remains outstanding. These stakes were
originally in the form of debt, although now Treasury holds both debt and equity in both
companies. Assistance to automotive suppliers and investments in GMAC, a financial institution
substantially dedicated to automotive lending, account for another $16.9 billion of TARP
resources, bringing TARP net support for the U.S. domestic automotive industry to slightly over
$81 billion as of September 9, 2009. Total TARP funding commitments to the automotive
industry reached an estimated $85 billion at one point, but that figure has been reduced by
decreased usage for the auto supplier program, repayments of warranty program loans and the
full repayment of the $1.5 billion loan to Chrysler Financial. As shown in the following table, of
the federal government‟s $81 billion exposure to the automotive industry, $76.9 billion had
actually been disbursed as of Aug. 5, 2008.
Figure 3: TARP Automotive Program Current Funds Outstanding (as of August 5, 2009)
Cumulative
Obligations265
Amounts Advanced
Chrysler
$14,312,130,642
$10,470,000,000
General Motors
$49,860,624,198
$49,500,000,000266
GMAC
$12,500,000,000
$12,500,000,000
$884,024,131
$884,024,131
Loan for GMAC
rights offering267
265
Cumulative obligation amount represents Treasury‟s total obligation to the automotive industry under
the AIFP. The figure does not reflect repayments, de-obligations or committed funds that are unused. For example,
Treasury originally allocated $3.8 billion for Chrysler‟s DIP financing. However, only $1.89 billion of this portion
was used. Since Treasury has indicated in discussions with the Panel that the remaining $1.91 billion was deobligated, it is not reflected in this metric. The Amounts Advanced are decreased by commitments that were not
funded but includes amounts that are no longer owing such as the amounts credit bid in the GM bankruptcy.
266
This number reflects the $8.8 billion in loans and preferreds outstanding as well as the original loan
amounts that are now in the form of equity.
267
Loans to GM that have been converted to shares of GMAC and are currently not obligations of GM or
GMAC. The GM loan was terminated.
54
Auto Supplier
Supports
$3,500,000,000
$3,500,000,000268
Total
$81,056,778,971
$76,854,024,131
In Section 123 of EESA, Congress required that both the Office of Management and
Budget (OMB) and the Congressional Budget Office (CBO) calculate the budget costs of the
TARP transactions under the procedures of the Federal Credit Reform Act of 1990,269 while
using discount rates reflecting market risk rather than simply the government‟s cost of funds. In
publishing their calculations of TARP budget outlays for 2009 using this “credit reform”
methodology, the OMB and CBO offered their estimates of the subsidy rate which taxpayers are
providing.270 OMB calculates separate subsidy rates for TARP automotive investment debt and
equity transactions at 49 percent and 65 percent, respectively, while CBO estimates an aggregate
credit subsidy rate for all TARP automotive industry support programs of 73 percent. These
subsidy rates, which represent an estimate of the investment that will not be recouped by the
federal government, incorporate assumptions concerning the timing of cash flows (mainly
principal and interest or dividend payments) as well as defaults on, or (partial) losses of, the
amounts invested. However, both sets of estimates that were completed after the initial Chrysler
and GM viability plans were rejected by the Obama Administration but before the companies‟
respective bankruptcy proceedings had been completed. Nevertheless, these credit subsidy
estimates reflect analysis by the two budget agencies that imply – at least as of the time they
performed their analyses – there was a high likelihood that a substantial portion of the initial
TARP financing provided to Chrysler and GM in December and January would not be
recovered.271 Similarly, the latest SIGTARP report notes that with respect to DIP financing
268
This figure does not reflect the amount outstanding under the program, but instead is the total amount
available under the cap.
269
EESA § 123(a).
270
Office of Management and Budget, The President‟s Budget for Fiscal Year 2010, 983 (May 2009)
(online at www.whitehouse.gov/omb/budget/fy2010/assets/tre.pdf) (hereinafter “President‟s Fiscal Year 2010
Budget”); See generally Congressional Budget Office, The Troubled Asset Relief Program: Report on Transactions
Through June 17, 2009 (June 2009) (online at www.cbo.gov/ftpdocs/100xx/doc10056/06-29-TARP.pdf) (hereinafter
“CBO June TARP Transactions Report”).
271
The CBO analysis (see CBO June TARP Transactions Report, supra note 270) is based primarily on the
yield of GM-issued preferred stock as observed in financial markets over the months prior to the GM bankruptcy
filing. OMB‟s analysis (see President‟s Fiscal Year 2010 Budget, supra note 270 at 982-985) was developed by
separating the AIFP into categories for debt and equity, encompassing working capital financing for Chrysler and
GM, GMAC debt and equity, Chrysler Financial debt and the two companies‟ respective supplier programs.
Subsidy estimates were calculated for each category using comparable data from both the industry and other
government programs, where available; otherwise the category was assigned a 100 percent subsidy rate as a
placeholder until refined estimates are prepared later this year, representing a worst case scenario that assumes no
projected recovery of TARP funds. These individual calculations were then aggregated with weights reflecting
relative funding levels.
55
provided to Chrysler, “Treasury does not expect to receive repayment.”272 As more federal
dollars have been devoted to the automotive investment in Chrysler and GM, including funds
committed to aid both companies throughout their bankruptcy proceedings, CBO has increased
its estimates as to the dollar amount of the automotive assistance subsidy. In its August report,
“CBO raised its estimate of the costs of that assistance by nearly $40 billion relative to the
March baseline.”273
Treasury officials have acknowledged to Panel staff that at least some portion of the
initial TARP funds disbursed in conjunction with the Chrysler and GM bankruptcies may not be
recouped.274 They stress, however, that recovery of TARP investments in the automotive
industry will be highly dependent upon the value of the stock that Treasury holds (or
subsequently receives) in the two companies when they are able to go public. Hence, the
prospects for recovery of the TARP investments depend on the forecast for Chrysler and GM
stock appreciation, which is something they cannot predict. In discussions, Treasury agreed with
the Panel‟s assessment that the new companies‟ stock prices will have to appreciate sharply in
order for Treasury, i.e. taxpayers, to be fully repaid on all of the TARP funds that have been
invested.275
With respect to Chrysler, Treasury has invested a combined $14.3 billion in the new and
old entities, including $1.5 billion for Chrysler Financial and $280 million for the Chrysler
warranty program. The bankrupt Chrysler estate (Old Chrysler) is liable for $3.5 billion of
272
SIGTARP, Quarterly Report to Congress (July 21, 2009) (online at
www.sigtarp.gov/reports/congress/2009/July2009_Quarterly_Report_to_Congress.pdf).
273
The Budget and Economic Outlook: An Update, supra note 271.
274
During a meeting with Panel staff on August 11, 2009, Mr. Bloom explained that it was possible but
unlikely that taxpayers would recover all of the money they had invested in Chrysler and General Motors. Mr.
Bloom has acknowledged that “likely scenarios involve a reasonable probability of repayment of substantially all of
the government funding for new GM and new Chrysler, and much lower recoveries for the initial loans.” Ron
Bloom COP Testimony, supra note 36. The Task Force has indicated to the Panel that the “initial loans” refer to the
$4 billion lent to Old Chrysler ($500 million of which was assumed by New Chrysler) and the $19.4 billion lent to
Old GM (which was part of the loans that were credit bid for the assets of New GM).
Over $7.3 billion was originally committed in TARP and DIP financing to Old Chrysler (only $1.9 billion
of the original $3.8 billion DIP financing is outstanding); it is highly unlikely that these funds will be returned to
Treasury by Old Chrysler and any recovery on these amounts will depend on New Chrysler‟s stock price.
Deducting $3.5 billion in “initial loans” from the total amount expended, the 8 percent Treasury stake in New
Chrysler stock would have to be worth $1.1 billion (a total capitalization of $13.75 billion) for the taxpayer to
recover the amount that the auto team believes is reasonably likely to be recovered.
With respect to GM, there is $49.5 billion in government assistance that was initially extended to Old GM
and then credit bid for the assets of New GM. Deducting $19.4 billion in “initial loans” from the total amount
expended, the Treasury stake in New GM stock would have to be worth $21.29 billion (a total capitalization of
$35.01 billion) for the taxpayer to recover the amount that the auto team believes is reasonably likely to be
recovered.
275
Id.
56
TARP financing, and given the competing claims on that estate, payment is unlikely.276
Treasury‟s interest in the new Chrysler includes a note for $6.6 billion that includes up to $533
million of payment-in-kind interest and a issuance fee of $288 million, and a $500 million loan
assumed from Old Chrysler and an equity ownership share. While the Panel did not have access
to equity valuations for New Chrysler, it is clear that – with $12.5 billion invested ($14.3 billion
less Chrysler Financial and the Chrysler warranty program, which have been repaid) and
assuming repayment of both the $7.1 billion of this investment in the form of notes as well as the
fees and payment-in-kind interest of $821 million – the Chrysler equity interest277 would need to
achieve the remaining investment value of approximately $4.6 billion278 (implying total
capitalization of New Chrysler of $57.5 billion) in order for taxpayers to recoup their investment.
With respect to New GM, the sizeable amount of debt for which the company is
responsible means that repayment of the TARP financing will require New GM stock to
appreciate to a level that is highly optimistic.
The valuation of New GM used by the bankruptcy court estimated that the market
capitalization (the price of all outstanding shares) of the new entity would be worth between $59
and $77 billion in 2012.279 Treasury has invested a combined $49.5 billion in the New and Old
GM and approximately 61 percent of equity in New GM.280 Assuming full repayment of the
$8.8 billion note and preferred stock issued by New GM to Treasury, the shares in New GM will
have to be worth $40.7 billion (the difference between $49.5 billion and $8.8 billion) for
Treasury‟s investment to be repaid when Treasury sells its shares, meaning the market
capitalization of the entire company needs to be worth $67.7 billion. In April 2000, when Old
GM shares were at the height of their value (not adjusted for inflation), the company‟s total value
was only $57.2 billion.281 In other words, New GM will have to achieve a capitalization that is
higher than was ever achieved by Old GM if taxpayers are to break even.282
Of course, preserving portions of Chrysler and GM might have resulted in savings for the
government in other ways. As discussed in more detail below, Treasury has not clearly
explained how the various competing policy and financial objectives involved in the rescue of
the automotive companies influenced its decisions. Without Treasury clearly articulating these
276
See supra Figure 1.
277
Assuming that Fiat meets its performance targets and the Treasury interest is decreased to 8 percent.
278
This does not account for the warrants Treasury owns in Chrysler Financial.
279
Declaration of J. Stephen Worth, supra note 36.
280
White House March 31 Remarks on GM Restructuring, supra note 100; GM July 16, 2009 8-K, supra
281
Id.
282
Id.
note 86.
57
objectives and providing its analysis, the Panel is unable to discern whether other financial
considerations should be taken into account when analyzing whether taxpayers will be repaid.
The following figures show TARP automotive program funding to Chrysler, Chrysler
Financial, GM, and GMAC; and the funds committed to Chrysler and GM.
58
Figure 4: TARP Automotive Program Funding to Chrysler and Chrysler Financial (as of August 28, 2009)
Date
Assisted
Entity
Initial Assistance
Amount
Initial
Security
Type
Repayment/Exchange/
Note
1/2/2009
Chrysler
Holding LLC
$4,000,000,000
Loan
$500,000,000 of 1/2/09
facility assumed by New
Chrysler on 5/27/09
1/16/2009
Chrysler
Financial
Services
Americas LLC
$1,500,000,000
Loan
Repaid ($1,500,000,000)
Cumulative
Assistance
Amount
Current
Security Type
$3,500,000,000
Loan283
-
-
283
Although the original assistance was in the form of the loan, the remaining $3.5 billion can no longer be classified as a loan since it was made to an
entity that is now bankrupt. Treasury has indicated that the likelihood of recoupment of this amount is low, but possible if the equity value of Treasury‟s holding
increases to a certain level. The $500 million assumed by New Chrysler remains a loan. Overall recovery may also be potentially increased by Treasury‟s
interest in the equity of Chrysler Financial amounting to the greater of $1.375 billion or 40% of Chrysler Financial‟s equity.
59
4/29/2009
Chrysler
Holding LLC
$500,000,000
Loan
Unused and de-obligated
-
Loan
4/29/2009
Chrysler
Holding LLC
$280,130,642
Loan
(Chrysler
warranty)
Repaid Chrysler warranty
loan ($280,130,642)
-
-
5/1/2009
Chrysler LLC
$3,043,143,000
Loan
Adjusted by Treasury284
$1,890,000,000
Loan
5/20/2009
Chrysler LLC
$756,857,000
Loan
Adjusted by Treasury 285
$0
Loan
Loan
$500,000,000 of 1/2/09
facility assumed by New
Chrysler on 5/27/09
$7,142,000,000
Loan
5/27/2009
Total
New Chrysler
$6,642,000,000286
$16,722,130,642
$12,532,000,000287
284
This information was provided to the Panel by Treasury staff. The amount committed was ultimately unnecessary and adjusted accordingly.
285
Id.
286
Treasury also received equity consideration in New Chrysler. An April 30, 2009 press release by the Administration states that upon the closing of
the Chrysler-Fiat alliance, the U.S. government owned an 8 percent equity interest. U.S. Department of the Treasury, Troubled Asset Relief Program
Transactions Report for Period Ending August 5, 2009 (Aug. 5, 2009) (online at www.financialstability.gov/docs/transaction-reports/transactionsreport_08052009.pdf); U.S. Department of the Treasury, Obama Administration Auto Restructuring Initiative (April 30, 2009) (online at
www.financialstability.gov/latest/tg_043009.html). See Section (C) of this report for discussion of Treasury‟s equity ownership in New Chrysler. Only $4.58
billion of the committed $6.64 billion has been drawn as of August 18, 2009. Treasury provided de-obligation information in response to specific inquiries
relating to the Panel‟s oversight of the AIFP. Treasury provided the Panel with information regarding specific investments made under the AIFP on August 18,
2009. Specifically, this information denoted allocated funds that had since been de-obligated (hereinafter “Treasury De-obligation Document”).
287
This figure reflects the de-obligation of $1.91 billion of the allocated $3.8 billion in DIP financing and the de-obligation of an unused $500 million
loan facility.
60
Figure 5: TARP Funds Committed to Chrysler
61
Figure 6: TARP Automotive Program Funding to General Motors and GMAC (as of August 28, 2009)
Date
Assisted Entity
12/29/2008
General Motors
Corporation
Initial Assistance
Amount
$884,024,131
Initial
Security
Type
Loan
Repayment/Exchange/
Note
Exchange for GMAC
equity
Cumulative
Assistance
Amount
-
Current
Security Type
GMAC,
common equity
Old GM debt credit bid;
New GM equity received
12/31/2008
4/22/2009
5/20/2009
5/27/2009
General Motors
Corporation
General Motors
Corporation
General Motors
Corporation
General Motors
Corporation
$13,400,000,000
$2,000,000,000
$4,000,000,000
$360,624,198
Loan
(*Original loan amount
is thus now in the form of
equity)
Loan
New GM equity
received*
Loan
New GM equity
received*
Loan (GM
warranty)
New GM equity
received*
New GM
common equity,
$13,400,000,000*
GM preferred
New GM
common equity,
$2,000,000,000*
GM preferred
New GM
common equity,
$4,000,000,000*
GM preferred
New GM
common equity,
$360,624,198*
GM preferred
62
6/3/2009
General Motors
Corporation
$30,100,000,000
Loan
(DIP)
New GM equity and
preferreds received
$30,100,000,000
GM preferred,
GM loans
$19,941,511,395*
New GM
common equity
New GM preferreds
received
$2,100,000,000
New GM
preferred
Became a New GM loan
$7,072,488,605288
New GM, loan
Remained Old GM loan
$986,000,000
Old GM, loan
New GM equity*
Total
288
$50,744,648,329
New GM
common equity,
$49,860,624,198
$360,624,198 of this loan was repaid on June 10, 2009. August 28 TARP Transactions Report, supra note 102.
63
Figure 7: TARP Funds Committed to General Motors
64
2. Performance and Financing Challenges for the Automotive Companies
In order for the taxpayers to recoup their investments in the automotive companies, the
companies need to make enough money to cover their operating expenses and repay their debt,
and then become profitable enough to be able to sell their shares in initial public offerings
(IPOs). They face several challenges in achieving these objectives.
a. Cash flow challenges
At the time the automotive companies filed for bankruptcy, they were “burning” through
a substantial amount of money. These are the amounts by which their operating expenditures (to
pay workers and keep their factories running) exceeded the revenues they were generating from
sales and other sources. More revealing is that this structural imbalance stemmed primarily from
normal operations, and was not attributable to the type of major new capital spending that both
companies will require to become competitive in the future. Admittedly, as discussed above, this
burn rate reflected extraordinary market conditions.
The Panel reviewed elements of the viability plans approved by the Treasury auto team.
The projected cashflow in those plans, which drove the determination of viability made by the
Treasury auto team, assumes an increase in overall market size consistent with independent
market analysts‟ projections and a market share that has a rational if optimistic basis.
65
Figure 8: Estimated New Chrysler Debt (U.S., Canada, and UAW)
Lender
U.S. government290
Amount
$2 billion
$5.142 billion291
Annual Interest Rate289
LIBOR + 5%
LIBOR + 7.91%
Maturity
Dec. 2011
June 2017
Canadian government292
$500 million
$1.4 billion293
$4.587 billion
CDOR + 5%
CDOR + 5%
9%
Dec. 2011
June 2017
July 2023
UAW Trust294
Figure 9: Estimated New GM Debt (U.S., Canada, and UAW)295
Lender
U.S. government
Canadian government
UAW Trust
Amount
$7.1
billion296
$1.3 billion
$2.5 billion
Interest Rate
LIBOR + 5%297
Maturity
July 2015
CDOR + 5%298
9%299
July 2015
July 2017
289
For all of New Chrysler‟s loans with the U.S. and Canada, interest is accrued and paid on a quarterly
basis. Interest accrued through the first two quarters is considered “paid in kind,” and is added to the principal.
Essentially, interest accrues, but is not paid in cash through the end of 2009. It is paid, however, at maturity.
290
First Lien Credit Agreement between New Carco Acquisitions, LLC (to be named Chrysler Group
LLC) and the U.S. Department of the Treasury (June 10, 2009).
291
Of the $5.142 billion, all but $2.05 billion has been drawn by New Chrysler to date, according to
information provided to the Panel by Treasury.
292
First Lien Working Capital Credit Facility, Summary of Terms and Conditions, In re Chrysler LLC, 405
B.R. 79 (Bankr. S.D.N.Y. 2009) (online at chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f67541bf-a79b-e1b2cb9c18f0&l=1).
293
The $500 million and $1.4 billion loan amounts presented here are in U.S. dollars based on the exchange
rate at the time of issuance. Amounts owed to the Canadian government are paid in Canadian dollars.
294
Draft Loan Agreement between New Carco Acquisition LLC (to be named Chrysler Holding LLC) and
the bank of New York Trust Company (Trustee for VEBA, presented as UAW Trust Note) (Apr. 29, 2009).
295
GM July 16, 2009 8-K, supra note 86.
296
$361 million of this amount related to warranty loans repaid on July 10, 2009.
297
According to GM‟s August 7, 2009 8-K filing, “each UST Loan accrues interest at a rate per annum
equal to the 3 month LIBOR rate, which will be no less than 2.0%, plus 5.0% per annum, unless the UST determines
that reasonable means do not exist to ascertain the LIBOR rate or that the LIBOR rate will not adequately reflect the
UST‟s cost to maintain the loan. In such a circumstance, the interest rate to be applied shall be the greatest of (1) the
prime rate plus 4%, (2) the federal funds rate plus 4.5% or (3) the 3 month LIBOR (which will not be less than 2%)
plus 5%.” Supra note 92.
298
According to GM‟s August 7, 2009 8-K filing, loans outstanding to the Canadian government “accrue
interest at a rate per annum equal to the greater of the three-month CDOR rate and 2.0%, plus 5.0%. Accrued
interest is payable quarterly.” Supra note 92.
66
The amount of money to service this debt, even before the companies start to pay for
normal operations, such as steel and wages, is significant. The following tables set out the
amounts necessary to service existing debt obligations:
Figure 10: Estimated Contractual Obligations of New Chrysler (in billions)300
U.S. government longterm debt maturities
including interest
payments301
Canadian government
long-term debt
maturities including
interest302
UAW Trust note303
Total
‟09
‟10
‟11
‟12
‟13
‟14
‟15
‟16
‟17-‟23
Total
$0
$.505
$2.56
$.373
$.379
$.386
$.393
$2.87
$1.6
$9.1
$.053
$.094
$.594
$.059
$.059
$.059
$.059
$.464
$.435
$1.877
$0
$.315
$.3
$.4
$.6
$.65
$.65
$.65
$5.6
$9.16
$.053
$.914
$3.45
$.832
$1.04
$1. 1
$1.1
$3.98
$7.64
$20.14
299
According to GM‟s August 7, 2009 8-K filing, “the notes under the VEBA Note Agreement (VEBA
Notes) are scheduled to be repaid in three equal installments of $1.4 billion on July 15 of 2013, 2015, and 2017.”
Supra note 92.
300
The contractual obligations of New Chrysler presented in this table represent the Panel‟s best estimates
based on information compiled from the available loan documents. With respect to New Chrysler‟s loan agreement
with Canada, the interest rate of the loan is CDOR (or a minimum of 2 percent) plus 5 percent per annum. The
Panel assumes a CDOR rate of 2 percent for the life of the loan.
301
Estimates compiled from the First Lien Credit Agreement between New Carco Acquisitions, LLC (to be
named Chrysler Group LLC) and the U.S. Department of the Treasury (June 10, 2009). Also reflected in these
tables are two types of fees that New Chrysler owes the U.S. First, a “payment in kind” of $17 million every quarter
in new notes is added to the principal of $5.142 billion until maturity in 2017. Second, a one-time payment of $288
million is added to the principle of $5.142 billion at issuance. Since both payments are added to the principal, they
accrue interest over the length of the loan. New Chrysler pays these fees with interest at maturity in 2017.
302
Estimates compiled from the Summary of Terms and Conditions of Canadian Loan Agreement with
Chrysler Holding LLC (Apr. 29, 2009). Not reflected in these estimates is an additional fee that New Chrysler is
expected to owe the Canadian government. According to Panel discussions with Treasury, terms of this fee are still
being reviewed.
303
Estimates compiled from Draft Loan Agreement between New Carco Acquisition LLC (to be named
Chrysler Holding LLC) and the bank of New York Trust Company (Trustee for VEBA, presented in the table as
UAW Trust note) (Apr. 29, 2009).
67
Figure 11: Estimated Contractual Obligations of New GM (in billions)304
2010
‟11
‟12
‟13
‟14
‟15
‟16-‟17
Total
U.S. government longterm debt maturities
including interest
payments
$.47
$.47
$.47
$.47
$.47
$7.18
$0
$9.53
Canadian government
long-term debt
maturities including
interest
$.09
$.09
$.09
$.09
$.09
$1.38
$0
$1.83
$0
$0
$0
$1.4
$0
$1.4
$1.4
$4.2
$.56
$.56
$.56
$1.96
$.56
$9.96
$1.4
$15.56
UAW Trust note
Total
The viability plans assume positive cashflow in the relatively short term. To the extent cash
from the sale of automobiles cannot cover the costs of production and other corporate costs,
Chrysler and GM will have to borrow money from banks, or access the debt or equity capital
markets.
b. Access to the Debt and Equity Markets; Initial Public Offerings
As discussed above, the Treasury auto team intends that both companies will eventually
access the equity capital markets in the form of IPOs,305 and as a result, successful IPOs form the
basis for both repaying taxpayers and Treasury‟s exit strategy. This strategy hinges directly on
the ability of the two companies to restructure and become profitable. At the moment, in a stillconstrained credit market, and with the pressures associated with these two companies (not least
the risk of political interference),306 it is unclear whether either company in its current form could
access the banks or the debt capital markets in the amounts and on the terms that they would
require.
304
The contractual obligations of New GM presented in this table represent the Panel‟s best estimates based
on information compiled from GM‟s 8-K filed on August 7, 2009. GM August 7 8-K, supra note 92. With respect to
New GM‟s loan with the U.S. government, the Panel assumes the U.S. will bear an interest of LIBOR plus five
percent throughout the life of the loan. LIBOR is assumed to be two percent, therefore the total interest is assumed
to be seven percent for the life of the loan. With respect to New GM‟s loan with the Canadian government, the
interest rate of the loan is CDOR (or a minimum of two percent) plus five percent per annum. The Panel assumes a
CDOR rate of two percent for the life of the loan, and therefore assumes a total interest rate of seven percent per
annum. $361 million of the initial $7.1 billion loan amount was repaid on July 10, 2009.
305
See supra section B.1 and infra section G.2.
306
See supra section E.4.
68
Following the completion of a successful IPO, the Treasury auto team has made clear it
intends to dispose of Treasury‟s ownership stakes in New Chrysler and New GM “as soon as is
practicable,” as discussed above. At least with respect to New GM, where Treasury holds 60.8
percent of the company, Treasury does not expect to sell its entire stake in the IPO.307 The
Stockholders Agreement308 calls for Treasury to use “reasonable best efforts to exercise [its]
demand registration rights under the Equity Registration Rights Agreement and cause an IPO to
occur within one year of the date of this Agreement, unless the Corporation is already taking
steps and proceeding with reasonable diligence to effect an IPO.”309 Thus, it is unclear when
Treasury will completely exit its TARP investments in the automotive industry, but it is unlikely
to be at any point in the near future.
The Treasury auto team has not ruled out other ways of exiting ownership of these
companies and returning them to private hands, but options such as selling Treasury‟s stake to
private equity investors seem unlikely at present.310
In making the decision – or decisions – to sell the equity stakes that it holds in the
automotive companies, Treasury will have to balance the desire to exit as soon as practicable (as
articulated by the President and the head of the Treasury auto team) with the need to maximize
the return (or minimize the loss) to taxpayers. It is not easy to time the markets, and Treasury
cannot force the companies‟ boards of directors to engage in an IPO. Until the companies go
307
Ron Bloom COP, supra note 36. For further discussion of Task Force statements concerning its intent to
eventually dispose of its ownership stakes, see Sections supra B.1 and infra G.2.
308
New GM Stockholder Agreement, supra note 87.
309
General Motors Company, Form 8-K (July 10, 2009) (online at
www.sec.gov/Archives/edgar/data/1467858/000119312509150199/dex101.htm).
Under the terms of the New Chrysler Shareholders Agreement, Treasury can require New Chrysler to file a
registration statement under the Securities Act of 1933 (a “demand registration”); in the case of an IPO, such
demand notice can only be delivered by either (a) one or more holders holding 10 percent or more of the equity
securities, or (b) both Treasury and Canada. Shareholders Agreement Among Fiat Newco, United States
Department of the Treasury, UAW Retiree Medical Benefits Trust, Canada Development Invesment Corporation,
and the other Members Party Hereto, section 3.2(a)(i) (filed May 12, 2009) In Re Chrysler LLC, S.D.N.Y. (No. 09 B
50002 (AJG)) (hereinafter “New Chrysler Shareholders Agreement”). Treasury cannot seek more than one demand
registration in any 12-month period, and cannot request more than five. Id. at Section 3.2(a)(ii).
The New GM Stockholders Agreement directs Treasury to use its reasonable best efforts to exercise “[its]
demand registration rights under the Equity Registration Rights Agreement and require an IPO to occur” by July 10,
2010 (one year from the date of the Stockholders Agreement). Additionally, pursuant to the terms of the New
Chrysler Shareholders Agreement and the New GM Equity Registration Rights Agreement, each time New Chrysler
or New GM proposes to offer any equity securities in a registered underwritten offering under the Securities Act,
they must provide each holder (including Treasury) with the opportunity to include any or all of their registrable
securities in such offering (“piggyback offering”). Id. at section 3.3(a); New GM Stockholder Agreement, supra
note 87 at section 2.2.1.
310
At a July 29, 2009 briefing with Panel staff, Treasury and Task Force staff indicated that, at least at that
point, no private equity investor has come along with demonstrated interest in investing in these companies.
However, there are several pre-IPO contractual limitations on the public sale of Treasury‟s ownership
stakes in New GM that are set out in the Stockholders Agreement.
69
public through the IPO process, Treasury‟s only option is to sell its stake privately (which, as
discussed above, remains an unlikely event). Once the companies become public companies
subject to SEC reporting requirements, Treasury‟s options would be somewhat broader. If the
company concerned agreed, Treasury could sell large stakes in SEC-registered secondary
offerings.311 With or without the company‟s approval, Treasury could also sell smaller amounts
of shares into the public markets.312
G. Issues Raised
1. Authority to Use TARP for Support of the Automotive Companies
The funds used by the Treasury auto team in the various transactions associated with the
Chrysler and GM reorganizations were from the $700 billion appropriated for TARP. Treasury,
as an executive agency, and the Task Force both acted under presidential direction. Their actions
are therefore properly scrutinized as executive actions. Under this scrutiny, the use of TARP
funds for the automotive industry raises questions regarding both presidents‟ authority to use
these funds under EESA legislation and, more broadly, under the U.S. Constitution. The
statutory language is ambiguous and, in light of the language and history of EESA, the question
is a close one.
a. The Scope of Executive Authority
Unlike the first article of the Constitution, which clearly enumerates the powers vested in the
legislative branch, the second article says only that “the executive power shall be vested in a
President of the United States” and that it is the president‟s duty to “ensure that the laws be
faithfully executed.”313 With a handful of exceptions, the president‟s authority to act will most
often derive from a statute.314 In this case, the relevant statute is EESA.
311
GM August 7 8-K, supra note 293.
312
Shareholders that are “affiliates” of a company (in general, those with a significant stake in the voting
equity of the company, or the right to a board seat) may sell their shares in the public markets without registration of
the transaction with the SEC. SEC rules impose volume, timing and other restrictions on such sales. Commodity
and Securities Exchanges, 17 C.F.R. § 230.144. Any such sales by the government are likely to have a significant
impact on the securities market, which may suspect a signal to the market with respect to the specific companies, the
auto industries, or the economy in general. For this reason (and the general difficulty in timing the market discussed
above), holding these equity stakes in a trust, discussed in more detail below, might help to manage the taxpayers‟
stake more efficiently and maximize returns.
313
U.S. Constitution, art. II, § 1 and 3.
314
The leading authority on how the president‟s power should be interpreted is Justice Robert Jackson‟s
concurring opinion in the 1952 U.S. Supreme Court case, Youngstown Sheet & Tube v. Sawyer. Youngstown Sheet &
Tube Co. et al. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). Youngstown presents three scenarios
illustrating the varying scope of executive power. In the first scenario,when a president acts pursuant to
Congressional mandate, the president‟s authority “is at its maximum, for it includes all that he possesses in his own
right plus all that Congress can delegate.” Id. at 635. At the other extreme is the scenario in which the president‟s
power is “at its lowest ebb,” that is, when the president takes action that has been specifically proscribed by
70
b. The Emergency Economic Stabilization Act
EESA does not explicitly state that the TARP is available to provide assistance to the
automotive industry (or to any specific industry except arguably the financial and banking
industry) but there may be an interpretation under which such assistance is nonetheless
authorized.
EESA states that:
The Secretary [of Treasury] is authorized to… purchase, and to make and fund
commitments to purchase, troubled assets from any financial institution, on such
terms and conditions as are determined by the Secretary, and in accordance with
this Act and the policies and procedures developed and published by the
Secretary.315
It defines a “troubled asset” as “residential or commercial mortgages and any securities,
obligations, or other instruments that are based on or related to such mortgages that in each case
originated or issued on or before March 14, 2008, the purchase of which the Secretary
determines promotes financial market stability”316 and “any other financial instrument that the
Secretary, after consultation with the Chairman of the Board of Governors of the Federal
Reserve System, determines the purchase of which is necessary to promote financial market
stability, but only upon transmittal of such determination, in writing, to the appropriate
committees of Congress.”317 A “financial institution” is defined as:
[a]ny institution, including, but not limited to, any bank, savings association,
credit union, security broker or dealer, or insurance company, established and
regulated under the laws of the United States or any State, territory, or possession
of the United States…and having significant operations in the United States, but
excluding any central bank of, or institution owned by, a foreign government.318
Congress “for then he can rely only upon his own constitutional powers minus any constitutional powers of
Congress over the matter.” Id. at 637. In the middle is the case in which the president may act in certain situations
when Congress has been silent on an issue – neither passing legislation to authorize presidential action nor passing
legislation proscribing such action. Id. Despite its lack of one clear rule delineating the outer bounds of executive
authority, Youngstown has remained the premier authority on the issue for the last 57 years. Lee Epstein & Tonja
Jacobi, Super Medians, 61 Stan. L. Rev. 37, 60 n.85 (2008) (internal citations omitted). The Youngstown categories
are not particularly relevant in this case, however, because there is no inherent executive authority on which the
president could plausibly rely. The president‟s authority must therefore derive from statute.
315
EESA § 101 (a)(1).
316
EESA § 3 (9)(A).
317
EESA § 3 (9)(B); see also Congressional Oversight Panel, August Oversight Report: The Continued Risk
of Troubled Assets, at 10-22 (August 11, 2009) (discussion of what constitutes a “troubled asset”) (online at
cop.senate.gov/documents/cop-081109-report.pdf) (hereinafter “August COP Report”).
318
EESA § 3 (5).
71
The first question is therefore whether the transactions at issue constituted the purchase
of “troubled assets” under EESA. While the majority of transactions associated with the
Chrysler and GM deals did not involve residential or commercial mortgages or real estate-related
securities, and therefore do not qualify under EESA § 3(9)(A), it appears that the assets
purchased by Treasury do meet the qualifications under EESA § 3(9)(B). Before purchasing any
assets from either GM or Chrysler, then-Secretary of the Treasury Henry Paulson submitted a
determination to Congress stating that he had conferred with Chairman of the Federal Reserve
Board Ben Bernanke and had determined that “the purchase of obligations of certain thrift and
other holding companies which are engaged in the manufacturing of automotive vehicles and the
provision of credit and financing in connection with the manufacturing and purchase of such
vehicles is necessary to promote financial market stability.”319 To the extent that the transactions
involved the purchase of assets, these assets appear to qualify as “troubled assets” under the
definition provided in the statute.
The next question is whether GM or Chrysler can be called a “financial institution” under
EESA. The language of the statute itself does not provide a clear answer. Although the statute
provides a list of entities that may be considered “financial institutions,” including such patently
“financial” institutions as banks, savings associations, and credit unions, it states that the
universe of what may be considered a “financial institution” includes but is “not limited to” those
on the list. The ambiguity of this list presents a challenge in determining what types of
institutions absent from the list may still be considered within the statute‟s purview.
c. The Executive’s Interpretation
Both the executive branch and Treasury have spoken on this issue through various court
documents, public statements, and congressional testimony. In the view of the executive branch,
the use of TARP funds for the automotive industry is entirely appropriate. This was not
President Bush‟s initial view, however.
At a press conference on November 7, 2008, Tony Fratto, Deputy White House Press
Secretary in the Bush Administration, stated that:
What we have to deal with here in the federal government, though, are the rules
that – or the authorities that Congress gave us to deal with how we can assist the
automakers and other automotive component makers. And that is the section 136
auto loan program that is being administered by the Department of Energy…If
Congress has any interest in going beyond that, that‟s a decision that they‟re
going to have to make.320
319
Letter from Henry Paulson to Representative Charles Rangel (Dec. 23, 2008).
320
White House Office of Press Secretary, Press Briefing by Deputy Press Secretary Tony Fratto (Nov. 7,
2008) (online at georgewbush-whitehouse.archives.gov/news/releases/2008/11/20081107-1.html).
72
On November 18, 2008, Secretary Paulson reiterated that position during his testimony
before the House Financial Services Committee:
[a]gain, you haven‟t seen any lack of consistency on my part with regard to the
autos. The TARP was aimed at the financial system. That is what the purpose is.
That is what we talked about with the TARP…I don‟t see [preventing the failure
of one or more automotive companies] as the purpose of the TARP. Congress
passed legislation that dealt with the financial system‟s stability.321
On December 19, President Bush announced that he would reverse his earlier position
and use TARP funds for the automotive companies. During a press conference, President Bush
explained that his administration had:
[W]orked with Congress on a bill to provide automakers with loans to stave off
bankruptcy while they develop plans for viability. This legislation earned
bipartisan support from majorities in both houses of Congress. Unfortunately,
despite extensive debate and agreement that we should prevent disorderly
bankruptcies in the American automotive industry, Congress was unable to get a
bill to my desk before adjourning this year. This means the only way to avoid a
collapse of the U.S. automotive industry is for the executive branch to step in…So
today, I‟m announcing that the federal government will grant loans to automotive
companies under conditions similar to those Congress considered last week.322
The Bush Administration reasoned that that EESA‟s definition of “financial institution”
was broad enough to include the automotive companies, whose failures “would pose a systemic
risk to financial market stability and have a negative effect on the economy of the United
States.”323
321
House Financial Services Committee, Statement of Secretary of the Treasury Henry Paulson, Oversight
of Implementation of the Emergency Economic Stabilization Act of 2008 and of Government Lending and Insurance
Facilities: Impact on the Economy and Credit Availability, 110th Congress , at 18 -19 (Nov. 18, 2008).
322
President George W. Bush, Statement on Financial Assistance to Automakers, (Dec. 19, 2008) (online at
www.washingtonpost.com/wp-dyn/content/article/2007/03/19/AR2007031900867_pf.html).
323
U.S. Department of the Treasury, Section 105(a) Troubled Asset Relief Program Report to Congress for
the Period December 1, 2008 to December 31, 2008, at 3 (Jan. 6, 2009) (online at
www.financialstability.gov/docs/105CongressionalReports/105Report_010609.pdf). Critics argue that the
executive‟s use of money authorized under EESA to assist the automotive industry is a violation of “the nondelegation doctrine,” which stipulates that the separation of powers laid out in the Constitution implies limits on the
size and kind of discretion that Congress may confer on the executive branch. They contend that Congress did not
intend for EESA to cover automobile manufacturers, citing as evidence proposed legislation that would have
explicitly provided rescue funds to the automakers. If Congress intended EESA to cover automotive companies,
then the deliberation over additional legislation would have been unnecessary.
73
Treasury provided additional elaboration on its authority in Mr. Bloom‟s response to
questions for the record posed during the Panel‟s hearing on the automotive industry in July
2009. In response to one question, Mr. Bloom wrote:
Each program has guidelines that specify eligibility criteria. These criteria are
posted on the financial stability website, www.financialstability.gov.
For example, in determining whether an institution is eligible for funding under
the Automotive Industry Financing Program, Treasury has identified the
following factors for consideration, among other things:
1. The importance of the institution to production by, or financing of, the American
automotive industry;
2. Whether a major disruption of the institution‟s operations would likely have a
materially adverse effect on employment and thereby produce negative effects on
overall economic performance;
3. Whether the institution is sufficiently important to the nation‟s financial and
economic system that a major disruption of its operations would, with a high
probability, cause major disruptions to credit markets and significantly increase
uncertainty or losses of confidence, thereby materially weakening overall
economic performance; and
4. The extent and probability of the institution‟s ability to access alternative sources
of capital and liquidity, whether from the private sector or other sources of U.S.
government funds.324
Presumably these criteria also informed the initial decision to provide support to the automotive
industry.325
The Chrysler and GM bankruptcy cases have provided an additional forum for the
executive branch to express its view with the added benefit of in-depth legal analysis. For
324
325
Mr. Bloom also responded to a question regarding whether Treasury would provide a legal opinion
stating its authority to use the TARP funds for the automotive industry. Mr. Bloom answered by referencing the
bankruptcy filing described above, and noted that Judge Gerber‟s final sale order in the GM bankruptcy had stated:
The U.S. Treasury‟s extension of credit to, and resulting security interest in, the Debtors, as set
forth in the DIP Facility and the Existing UST Loan Agreement and as authorized in the interim
and final orders approving the DIP Facility, is a valid use of funds pursuant to EESA.
This statement seems at odds with Judge Gerber‟s finding in the opinion issued the same day that found
that the party raising the issue lacked standing, and because the question was moot and therefore not properly before
the court. In re General Motors, 407 B.R. 463, 519 (Bankr. S.D.N.Y. 2009). Given the inconsistency between these
two statements, the bankruptcy court‟s views on the issue are at best ambiguous.
74
example, a filing by the United States in the GM case stated that, according to the statute, a
“financial institution” is “any institution…established and regulated under the laws of the United
States or any State, territory, or possession of the United States…and having significant
operations in the United States.” 326 On this basis, the United States concluded that “GM plainly
fits within the statutory language because it is an „institution…established and regulated under
the laws of the United States or any State, territory, or possession of the United States…and
having significant operations in the United States.”327
Based on this interpretation, the term “financial institution” means any institution
organized under U.S. law with operations in the United States. This interpretation does not,
however, seem to account for the phrase “including, but not limited to, any bank, savings
association, credit union, security broker or dealer, or insurance company.” It also would seem
to lend little weight to Congress‟ selection of the term “financial institution.” The canons of
statutory construction, which traditionally provide guidance on how statutes should be
interpreted, generally frown on interpretations that render any part of the statute superfluous.328
The rule against superfluities assumes that legislatures, in general, mean what they say and that
the inclusion of certain words or phrases is not accidental.329 Using that assumption, Congress
must be presumed to have had a purpose in listing institutions that might typically be considered
“financial” institutions – banks, credit unions, broker dealers, and insurance companies.
It appears that the United States refined its position, perhaps to address this issue, during
oral argument before the Second Circuit in the Chrysler case. The United States argued that
there is a certain connection between the automotive companies‟ financing entities and the
automotive companies themselves that permits the use of TARP funds to support the automotive
companies, thereby supporting the companies‟ financial divisions. During argument, the United
States asserted that:
[T]he Secretary of the Treasury, in determining what is a financial institution,
looks at the interrelatedness [of the company and its financing arm].
Chrysler Financial can‟t survive without Chrysler….Without [Chrysler], the
financial institution goes down…[Chrysler Financial] is the financial institution
and the relationship [with Chrysler is the one] that the Secretary of the Treasury
326
Statement of the United States of America Upon the Commencement of General Motors Corporation‟s
Chapter 11 Case, at 10 (Dec. 19, 2008). In re General Motors Corp., S.D.N.Y. (Dec. 19, 2009) (online at
docs.motorsliquidationdocket.com/pdflib/37_50026.pdf) (hereinafter “U.S. December 2008 GM Bankruptcy
Statement”).
327
Id.
328
Knight v. CIR, 128 S. Ct. 782, 789 (2008) (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S.
157, 166 (2004)).
329
Id.
75
based his determination on, and that determination is entitled to deference by this
court under administrative law principles.330
In neither the Chrysler nor the GM case was the question resolved because, in each case,
the judge determined that the objectors did not have standing to raise the issue or that the issue
was moot.331 In the case of Chrysler, the lower court found that the Indiana pension funds could
not raise the issue for two reasons: (1) they were bound by their Administrative Agent‟s
acceptance of the sale; and (2) the value of the collateral at issue was no greater than the value of
the amount that the first lien senior secured lenders were to receive and that therefore there was
no injury that could be alleged.332 The Second Circuit accepted the lower court‟s findings and
confirmed its ruling.333 In the GM case, the court simply noted the transaction at issue was the
use of the bidding procedure and did not directly involve any TARP funds, and also that Judge
Arthur Gonzales of the Bankruptcy Court for the Southern District of New York had found a
lack of standing when the same issue was raised in the Chrysler case.334
However, if a court had reached the issue in either the GM or Chrysler case, it may have
found guidance from the U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,335 or from the earlier Skidmore v. Swift,336 which together establish the
framework for analyzing whether an agency has correctly interpreted a statute in the face of
ambiguous language from Congress. According to Chevron:
If…the court determines Congress has not directly addressed the precise question
at issue, the court does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation. Rather, if
the statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency‟s answer is based on a permissible
construction of the statute.337
In such circumstances, the court noted it had “long recognized that considerable weight should
be accorded to an executive department‟s construction of a statutory scheme it is entrusted to
administer, and the principle of deference to administrative interpretations.”338 This deference,
330
In re Chrysler LLC, 2009 WL 2382766, * 10 n. 14, (2d Cir. Aug. 5, 2009) (quoting the transcript of the
oral argument at 52).
331
Id. at 11-12; In re General Motors Corp., 407 B.R. 463, 518 (Bankr. S.D.N.Y. 2009).
332
333
In re Chrysler LLC, 2009 WL 2382766, *11-12 (2d Cir. 2009).
334
In re General Motors Corp., 407 B.R. 463, 518 (Bankr. S.D.N.Y. 2009).
335
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al., 467 U.S. 837 (1984).
336
Skidmore v. Swift, 323 U.S. 134 (1944).
337
Id. at 843.
338
Id. at 844.
76
known now as “Chevron deference,” reflects the judiciary‟s respect for the specialized and
superior skill and knowledge that an executive agency brings to its area of expertise. A court
will therefore honor an agency‟s interpretation of such a statute as long as the interpretation
“represents a reasonable accommodation of conflicting policies that were committed to the
agency‟s care by the statute,” and will not disturb such interpretation “unless it appears from the
statute or its legislative history that the accommodation is not one that Congress would have
sanctioned.”339
Whether Treasury would be due such deference in this case is not clear. Later Supreme
Court opinions have suggested that an agency must use some authority that has been, either
explicitly or implicitly, delegated to that agency by Congress and that the authority has been used
under “circumstances that Congress would expect the agency to be able to speak with the force
of law when it addresses ambiguity in the statute or fills a space in the enacted law.”340 An
agency speaks with the “force of law” when, for example, it engages in rule-making under the
Administrative Procedure Act.341 While Treasury (and President Bush) have made various
statements regarding their interpretations of the statute and the authority to use the TARP in this
way, it is not clear that any of these statements is sufficient to qualify as speaking with the force
of law, especially since there has not been one coherent statement but a mix of court filings, oral
argument, and statements by Treasury officials. On December 23, 2008, Secretary Paulson
submitted to Chairman Rangel of the House Ways and Means Committee a determination under
section 3(9)(B) of EESA that assets to be purchased from the automotive companies should be
treated as “troubled assets” because their purchase was “necessary to promote financial market
stability.” The December 23 letter assumes, without any rationale, that the automotive
companies may be treated as “financial institutions” under EESA, so the weight that letter would
be accorded under Chevron is unclear.
In this situation, Skidmore may provide the more appropriate guidance. The Skidmore
court, like the Chevron court, noted that an agency‟s “policies are made in pursuance of official
duty, based upon more specialized experience and broader investigations and information than is
likely to come to a judge in a particular case.”342 Furthermore, the court continued, “[t]his Court
has long given considerable and in some cases decisive weight to Treasury Decisions and to
interpretative regulations of the Treasury and of other bodies that were not of adversary origin”
and that “rulings, interpretations and opinions” of an agency‟s administrator “do constitute a
339
Id. at 845 (quoting United States v. Shimer, 367 U.S. 374 (1961)).
340
United States v. Mead Corp., 533 U.S. 218, 229 (2001).
341
Id. See, by way of analogy, Christensen v. Harris County, 529 U.S. 576, 587 (2000) (interpretation
contained in agency‟s opinion letter did not merit Chevron deference when the letter did not follow a
formal adjudication or similar procedure).
342
Skidmore, 323 U.S. at 139.
77
body of experience and informed judgment to which courts and litigants may properly resort for
guidance.”343
d. The Congressional Record
While not strictly authoritative, it is often useful also to consider the Congressional
Record when interpreting a statute to determine whether a particular interpretation seems to
forward the goals articulated by Members of Congress while debating the statute.344 Of course,
various Members of Congress may have widely divergent reasons for passing a piece of
legislation and such divergence may result in purposely vague language in the final bill.
Nonetheless, it is useful to consult the Congressional Record in such cases for any widespread
views that might signal what the intent behind a statute was in the minds of its proponents.
In this case, the record shows that the Members of Congress who debated this legislation
in late 2008 believed they were debating a bill aimed at banks and the financial sector. For
example, multiple Senators remarked on the need to unfreeze the credit markets and their view
that EESA was intended to address just those markets.345 The understanding of EESA‟s purpose
appears to have been the same in the House, as illustrated by the remarks of Representative
Barney Frank, chairman of the House Financial Services Committee: “[i]n implementing the
powers provided for in the Emergency Economic Stabilization Act of 2008, it is the intent of
Congress that Treasury should use Troubled Asset Relief Program (TARP) resources to fund
capital infusion and asset purchase approaches alone or in conjunction with each other to enable
financial institutions to begin providing credit again[.]”346
On December 4, 2008, however, Senators Dodd and Reid and Representatives Pelosi and
Frank wrote to President Bush, asking him to reconsider his position on the use of TARP funds
343
Id. at 140.
344
Wirtz v. Bottle Blowers Ass‟n, 389 U.S. 463, 468 (1968).
345
Congressional Record, Statement of Senator Mitch McConnell, S10190-S10191 (Oct. 1, 2008) (“Right
now…the credit markets are frozen, so the circulatory system is not working as it should. If the circulatory system
doesn't work, it begins to choke off the body–the economy. With the step we take tonight, we are confident we will
be able to restore the circulatory system, if you will, and regain health for the economy….”); Congressional Record,
Statement of Senator Hillary Clinton, S10215 (Oct. 1, 2008) (“We are already seeing the consequences of a freezing
credit market that will only worsen…Our economy runs on credit. Underlying that credit is trust. Both the credit and
the trust is running out. Essentially, what we are doing in an intangible way is restoring trust and confidence, and in
a very tangible way helping to restore credit. Banks will refuse to lend to businesses and even to one another;
investors continue to withdraw to the safest investments….”); Congressional Record, Statement of Senator Judd
Gregg, S10216 (Oct. 1, 2008) (“We also know, regrettably, that the credit markets are basically locked up and that
credit on Main Street is disappearing, that people are not able to get financing for the payrolls, financing for
inventory, financing to buy a car, send children to school, rebuild the local hospital, rebuild the local school
system….”).
346
Congressional Record, Statement of Representative Barney Frank, H10763 (Oct. 3, 2008).
78
and allocate a portion of them to support the automotive industry,347 suggesting that at least these
four members of Congress believed that the TARP could be used for the automotive industry.
On December 10, 2008, a bill was passed by a 237 to 170 vote in the House to provide
funds to the automotive industry by diverting $14 billion in loans to Chrysler and GM from a
previously enacted program setup for the production of advanced vehicle technology.348
Although a different version of the same bill was subsequently brought to the Senate floor, and
debated long into the night on December 11, 2008, there was never a vote and Congress left for
the December recess without passing any legislation aimed at the automotive industry.
Congress‟s explicit consideration of legislation that ultimately failed to pass creates a
troubling question regarding the Bush Administration‟s decision to “step in” and rescue the
automotive industry.349 Recently, however, the Senate rejected an attempt by Senators Lamar
Alexander and Bob Corker to use an amendment to a spending bill to limit the availability of
TARP funds for automakers Chrysler and GM, suggesting that the Senate may not disagree with
the way TARP funds have been used.350 Given the various actions – and non-actions – by
Congress, it is difficult to make any sweeping statement about “Congressional intent” with
regard to the use of TARP funds to support the automotive industry.
f. Conclusion
At the end of this analysis, the question that remains is whether the executive should get
the benefit of the doubt about a close question of statutory interpretation when the executive
might have thought in good faith that interpreting the statute in a particular was crucial to the
national interest. This question may never be answered with any finality as the Panel is not
aware of any court before which the issue is currently pending and therefore it may never be
resolved.351
2. Government as Owner of Commercial Enterprises: Management Issues
347
Letter from Sens. Christopher Dodd and Harry Reid and Reps. Nancy Pelosi and Barney Frank to
President George W. Bush, (Dec. 4, 2008) (online at
www.democrats.senate.gov/newsroom/record.cfm?id=305476&).
348
H.R. 7321, supra note 14.
349
Doe v. Chao, 540 U.S. 614, 622 (2004) (declining to interpret Privacy Act of 1974 as not requiring
showing by plaintiffs of actual damages where, inter alia, “drafting history show[s] that Congress cut the very
language in the bill that would have authorized any presumed damages….”).
350
Congressional Record, Statements of Senators Alexander and Corker, S8217 – S8219 (July 29, 2009).
351
As noted previously, supra note 55, the Indiana State Police Pension Trust filed a motion for writ of
certiorari with the Supreme Court on September 3, 2009. There is no question raising the issue of Treasury‟s
authority to use the TARP funds among the questions presented to the court in the motion.
79
When government intervenes in business, it creates uncomfortable tensions and the
potential for conflicting policy priorities. Nowhere is this more apparent than when considering
the government as the owner or significant shareholder of a corporation.
a. Issues Implicated in Government Involvement in Commercial Enterprises
Few would argue with the objective of achieving the long term viability of Chrysler and
GM in order to protect the government‟s investment. The potential for conflict may, however,
arise should the government decide to use its position in these companies to promote public
policy initiatives. In the case of GM, in which the government is a controlling shareholder,
promoting such initiatives could raise the issue of fiduciary duty. To whom does the government
owe a fiduciary duty? Most courts have found that the controlling shareholder in a publicly held
corporation owes a fiduciary duty to the corporation.352 Others have found that a fiduciary duty
is owed directly to the minority shareholders.353 The pursuit of public policy objectives using an
investee corporation could violate these duties.354
The prospect of a government using its position of ownership in companies to pursue
public policy matters is not without historical precedent. During the 1980s, the United Kingdom
and other European countries privatized many of their state-controlled industries. In some cases,
they retained what are called “golden shares.” Golden shares are an “interest retained by a
government in a company that has been privatized after having been in public ownership stateowned companies.”355 While many of these shares have since expired, at the time, these shares
provided European governments with a powerful voice in a company‟s decision-making.356 It
has been argued that some governments even used their shares to block potential acquisitions of
these companies by outside investors out of interest “in maintaining inefficiently high levels of
employment or reducing cross-border flows of capital and services.”357 In some countries where
352
Gatz v. Ponsoldt, 925 A.2d 1265, 1281 (Del. 2007); Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361
(Del.1993).
353
Gentile v. Rossette, 906 A.2d 91, 103 (Del. 2006); see also Pfeffer v. Redstone, 965 A.2d 676, 691 (Del.
2009).
354
See, for comparison purposes, Dodge v. Ford Motor Co., 170 N.W. 668, 683-84 (Mich. 1919) (rejecting
as violative of fiduciary duties Henry Ford‟s “humanitarian” ambition to “employ still more men, to spread the
benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes”
by reinvesting back into the company profits that otherwise would have been paid as dividends to other
shareholders).
355
BNET Business Dictionary (accessed Aug. 30, 2009) (online at
dictionary.bnet.com/definition/golden+share.html).
356
J J.W. Verret, The U.S. Government as Control Shareholder of the Financial and Automotive Sector:
Implications and Analysis, Mercatus Center at George Mason University (accessed Aug. 30, 2009) (online at
www.mercatus.org/uploadedFiles/Mercatus/Events/CHC_-_2009_FMWG_II_-_Verret_Handout.pdf) (hereinafter
“U.S. Government as Control Shareholder”).
357
Id.
80
“mixed” public and private ownership of industry is common, the potential for conflicts between
private and public policy objectives is openly acknowledged and accepted.358
Even under the best of intentions, the potential for conflict exists. Unlike other investors,
the federal government has the ability to exert its influence in any number of ways. It has the
authority to negotiate Free Trade Agreements (FTAs) with other countries, take trade cases
before the World Trade Organization (WTO), and even impose safeguards on imports that it
believes may threaten one of its domestic industries. It has the authority to enforce securities and
trade laws, and can bring cases against individuals or companies found in violation of these laws,
which could include the imposition of fines and imprisonment. In a speech before the Kennedy
School of Government in October of 2007, then-SEC Chairman Christopher Cox stated: “if the
powers of government are no longer used solely to police the securities markets at arm‟s length,
but rather are used to ensure the success of the government‟s commercial or investment
activities, not only retail customers but every institutional investor could be put at a serious
disadvantage.”359 The longer that the government plays the role of regulator and regulated, the
greater the opportunity a conflict has to occur.
There are certain things that the government can do that the private sector cannot. When
credit is scarce, the government can act as a lender of last resort, providing a company with
favorable financing through a troubled time. The housing Government Sponsored Enterprises
(GSEs) – Fannie Mae and Freddie Mac – over the last two decades were able to use their implicit
government guarantees to raise debt cheaply in the markets, and then use that debt to finance the
purchasing of trillions of dollars of housing loans from originators. Whereas private companies
may find it difficult to borrow under the current conditions of the market, the government, if it
chooses, can indefinitely provide financing for its investment and act as the lender of last resort.
The ability to borrow cheaply from the government, however, is not without risk, and over the
long term can potentially undermine the private market by allowing firms to avoid the discipline
of commercial failure – moral hazard.
In addition to acting as a lender of last resort, the government has the ability to assist
Chrysler and GM indirectly. Unlike other investors, the government has the authority to enact
legislation designed to incentivize certain types of consumer behavior. The passage of the “Cash
358
See, for example, the following disclosure by the partly state-owned Brazilian company Eletrobras:
Centrais Elétricas Brasileiras S.A. – Eletrobrás, Form 20-F, at 15 (July 1, 2009) (online at
www.sec.gov/Archives/edgar/data/1439124/000119312509142012/d20f.htm#toc51217_7) (“We are controlled by
the Brazilian Government, the current policies and priorities of which directly affect our operations…The Brazilian
Government, as our controlling shareholder, has pursued (and may continue to pursue) some of its macroeconomic
and social objectives through us ...the Brazilian Government has in the past and may in the future require us to make
investments, incur costs or engage in transactions (which may include, for example, requiring us to make
acquisitions) that may not be consistent with our objective of maximizing our profits….”).
359
Chairman Christopher Cox, Speech by SEC Chairman: 'The Role of Government in Markets' Keynote
Address and Robert R. Glauber Lecture at the John F. Kennedy School of Government (Oct. 24, 2007) (online at
www.sec.gov/news/speech/2007/spch102407cc.htm).
81
for Clunkers” legislation, which was included in the Supplemental Appropriations Act of
2009,360 provided rebates for consumers who traded in their old fuel inefficient cars to purchase
new fuel efficient cars. The $1 billion appropriated for the program was largely used in the first
week of its availability, and additional funds were appropriated shortly thereafter by passage of
the Consumer Assistance to Recycle and Save Program (H.R.3435).361 The objective of the
program aimed, in part, to promote higher vehicle fuel efficiency; the program, however, also
helped with declining automotive sales. On August 26, 2009, the Department of Transportation
announced that the “Cash for Clunkers” program (which ended on August 25, 2009) generated
the purchase of “nearly 700,000 vehicles.”362 While the program offered the rebate to purchases
of new fuel efficient vehicles from all automotive companies, Chrysler and GM were certainly
among the beneficiaries of the program.
A further complicating factor is the risk of political interference in government-owned
entities. An example is the pressure the German government is putting onto the U.S. government
with respect to the sale of Opel. Thus far, Congress has not directly become involved in the
management of Chrysler and GM. The possibility, however, exists.363 Management, executive
compensation and bonus issues have become the subject of extensive public debate and have
resulted in compensation restrictions for TARP recipients. Moreover, pressures could mount
further given that federal assistance for the automotive companies is not politically popular.364
b. Tension Between Acting in a “Hands-Off Manner” and “Changing Culture”
At the Panel‟s Detroit field hearing, Mr. Bloom said the following:
Our role has been to act as a potential investor of taxpayer resources, and as such
we have not become involved in specific business decisions like where to open a
new plant or which dealers to close. This is the job of management... Our goal is
to promote strong and viable companies, which can be profitable and contribute to
economic growth and jobs without government support as quickly as possible.
360
Supplemental Appropriations Act, 2009, Pub. L. No. 111-32, 123 Stat. 1859 (hereinafter “Pub. L. 111-
361
CAR Save Program Supplemental Appropriations Act, 2009, Pub. L. No. 111-47, 123 Stat. 1972.
32”).
362
Department of Transportation, Office of Public Affairs, Press Statement for Transportation Secretary
Ray LaHood: Cash for Clunkers Wraps up with Nearly 700,000Car Sales and Increased Fuel Efficiency, U.S.
Transportation Secretary LaHood declares program “wildly successful” (August 26, 2009) (online at
www.cars.gov/files/official-information/August26PR.pdf).
363
Pub. L. No. 111-32, supra note 358.
364
Rasmussen Survey, Just 21% Favor GM Bailout Plan, 67% Oppose (May 31, 2009) (online at
www.rasmussenreports.com/public_content/business/auto_industry/may_2009/just_21_favor_gm_bailout_plan_67_
oppose).
82
Using GM or Chrysler as an instrument of broader government policy is
inconsistent with these goals.365
On the other hand, the Treasury auto team has stated that in order to create the conditions
most likely to lead to sustained viability for Chrysler and GM, it is necessary to change the
culture within these automotive companies.366
While the Administration‟s stated purpose may not be to involve the federal government
in the day-to-day business decisions of Chrysler or GM, the government will not be entirely
absent from exerting any influence. Mr. Bloom further testified that as a shareholder, Treasury
will vote on “core governance issues, including the selection of a company‟s board of directors
and major corporate events or transactions.” According to Mr. Bloom, the Treasury auto team
was “involved in recruiting” many of the new directors who now sit on the new boards of
Chrysler and GM.367 As a shareholder, Treasury cannot escape these fundamental duties.
Voting for directors is a basic right of shareholders, and it establishes the balance of power
between shareholders and management of the company.368 How Treasury manages these
responsibilities without overstepping, however, is an area that needs careful and continued
monitoring.
Moreover, the Treasury auto team‟s decision to dispose of its ownership stakes in
Chrysler and GM “as soon as practicable” also raises important policy questions regarding the
safeguarding of the taxpayers‟ investment, maximizing taxpayer return and the government‟s
likelihood of achieving the operational, cultural and economic restructuring it seeks. The
lingering issue is whether the government can really change the culture of these companies and
help improve their profitability while it remains a (supposedly) disinterested shareholder with a
“hands-off” approach to managing its investment. Merely exercising the right to vote on slates
for boards of directors and other significant corporate governance issues may not provide the
influence necessary to achieve the level of transformation sought. If the government intends to
be a “silent partner of sorts,” in the words of Senator Richard Shelby (R-AL),369 then it also
remains to be seen how it intends to protect the interests of the taxpayer as a shareholder.
365
366
In June 2009, Steven Rattner, then-head of the Task Force, stated: “[a]ddressing cultural issues is just as
fundamental to our assignment as addressing the balance sheet or financing.” Micheline Maynard, U.S. Takes On the
Insular Culture of G.M., New York Times (June 10, 2009) (online at
www.nytimes.com/2009/06/11/business/11auto.html?dlbk).
367
368
U.S. Government as Control Shareholder, supra note 356.
369
Senate Committee on Banking, Housing and Urban Affairs, Statement of Ranking Member Shelby, The
State of the Domestic Automobile Industry: Impact of Federal Assistance, 111th Cong. (June 10, 2009).
83
c. Models of Corporate Governance That Could Be Followed: Private Equity?
The private equity model could provide a useful template for the government in
managing its investment in New Chrysler and New GM, and help address some of the tensions
that exist when the government invests in commercial enterprises. A private equity firm will
often invest in a company, put its people in place, set the operating rules and reporting practices
that it believes will maximize its profits, and then let management run the company. A typical
investment lasts between three to five years, but can vary anywhere from one to ten years
depending on the investment.370 A private equity investor tends to be more involved with
management in the first months of the investment and more hands-off once a sense of stability at
the investee company is achieved. During the first few months after an acquisition, the lead
private equity partner generally spends at least half of its time working with management. The
strategy, mission, and purpose of the company are set in the beginning. Changes in management
help establish the new tone and culture. Together, the investor and management will “design and
execute near-term improvements and develop a detailed multi-year business plan.”371 Once the
plan is established and reporting procedures are put into place, the investor will let management
run the day-to-day operations and manage the company.
Compensation is largely performance-based.372 Private equity firms typically
compensate their senior management with holdings in the company ranging anywhere from two
to ten percent.373 Management salaries tend to be much lower than at publicly traded companies.
The private equity firm Texas Pacific Group, for example, brought in Millard Drexler in 2003 to
be the CEO of J. Crew at an annual salary of $200,000 with no bonuses.374 Instead, the bulk of
his compensation was based on the increase in equity gains he brought to his equity holders.
According to Scott Sperling, Co-President of Thomas H. Lee Partners, “around 90 percent of the
370
Driving Growth: How Private Equity Investments Strengthen American Companies, at 11 Private Equity
Council (accessed Aug. 30, 2009) (online at: www.privateequitycouncil.org/wordpress/wp-content/uploads/drivinggrowth-final.pdf).
371
Id.
372
To the extent that there are any changes to compensation, the Panel recommends that those changes
reflect the recommendations made in the its special report on regulatory reform. In that report, the Panel discussed
the ways in which executive pay has actually become decoupled from performance and provided four
recommendations for ensuring that compensation properly aligns executive and shareholder interests. These
recommendations included: 1) creating of tax incentives to encourage long-term oriented pay packages; 2)
encouraging financial regulators to guard against asymmetric pay packages in financial institutions; 3)
recommending that regulators consider requiring executive pay contracts to provide for clawbacks of bonus
compensation for executives of failing institutions, and 4) encouraging corporate governance structures with
stronger board and long-term investor oversight of pay packages. Congressional Oversight Panel, Special Report on
Regulatory Reform: Modernizing the American Financial Regulatory System: Recommendations for Improving
Oversight, Protecting Consumers, and Ensuring Stability, at 37-40 (January 29, 2009) (online at
cop.senate.gov/documents/cop-012909-report-regulatoryreform.pdf).
373
Id.
374
Id.
84
compensation the management teams get at our companies is driven by the performance of the
equity value. The alignment of management‟s interests and our interests is absolute.”375
Three aspects of the private equity model could be useful to Treasury going forward.
First, Treasury should clearly articulate the duration of its investment. While the Treasury auto
team has said that it plans to divest its holdings in New Chrysler and New GM “as soon as
practicable,” it should clearly articulate the conditions for divestment. Second, Treasury should
consider structuring the compensation of management at New Chrysler and New GM to be more
performance- based. The compensation of the new management is currently under review by
Treasury‟s Special Master. The general public has directed outrage at the bonus packages of
executives at various TARP recipient institutions. Tying management‟s compensation more
closely to the performance of New Chrysler and New GM reflects current corporate governance
best practices and may provide a more politically palatable alternative.
Finally, Treasury could articulate a mission and strategy for these companies that is
transparent to management, the boards, and the taxpayers, set up a system for reporting and
disclosures, and leave the business in the charge of management. The Treasury auto team has
approved Chrysler and GM‟s viability plans. It has appointed or reinstated 10 of the 13 board
members at New GM. It has appointed four of the nine board members at New Chrysler. New
management is firmly in place. The longer that Treasury lingers in the decisions of management,
the greater the opportunity that such decisions could become politicized.
Another approach that Treasury could employ to further separate management from
politics is to hold Treasury‟s interest in a trust, not unlike the AIG trust, discussed in more detail
below. While the government‟s influence would certainly still be evident, a trust would provide
an additional barrier between the Administration and management that could serve to prevent
any potential or actual politicization of management decisions.
d. Differences between Automotive Industry and Financial Institution Interventions
In some respects, Treasury‟s approach to its involvement with the domestic automotive
industry is similar to its approach to bank intervention since the passage of EESA in October
2008. Facing a financial crisis, Treasury recognized the need to take a series of actions
necessary to prevent a collapse of the financial system and its resultant impact on the greater
American economy. As part of its response, Treasury decided to provide capital to viable
financial institutions throughout the nation in order to strengthen their balance sheets, foster the
provision of business and consumer credit within the economy, and help stabilize the financial
375
Id.
85
system.376 Its provision of TARP assistance to both banks and domestic automobile companies
was, Treasury states, designed to prevent significant economic disruption.377
Treasury staff indicated to the Panel that they based their decisions to provide TARP
assistance to institutions on an entity-by-entity basis, rather than by industry.378 In other words,
Treasury reviewed the particular circumstances of each institution before it decided to disburse
TARP funding and was not seeking a uniform approach across the same industry. To support
this assertion, Treasury pointed to the fact that Treasury is a significant shareholder of GM and
Citigroup as well as a debt holder of Chrysler and the banks and other financial institutions
participating in the Capital Purchase Program (CPP).
There remains a perception, however, that banks and other financial institutions have
been treated rather differently from the automotive companies with respect to their TARP
investments.379 This perception remains despite both Treasury‟s assertions that it has based its
decisions on a case-by-case basis, and the Administration‟s articulation of a set of uniform
principles to govern its ownership interests in financial and automotive companies (one being
that in “exceptional cases” where the government feels it is necessary to respond to a company‟s
request for substantial assistance, Treasury will reserve the right to establish upfront conditions
as necessary including requirements for new viability plans as well as changes to boards of
directors and management.)380 During Secretary Geithner‟s testimony before the Panel in April,
he stated that the Obama Administration is prepared to oust top financial executives if their firms
require more public aid. Secretary Geithner indicated that where Treasury provides capital in the
future, it will be done so with conditions “not just to help protect the taxpayer, but to try to help
ensure that the system emerges stronger, not weaker.”381 Where Treasury provides “exceptional
376
U.S. Department of the Treasury, Statement by Secretary Henry M. Paulson, Jr. on Actions to Protect
the U.S. Economy (Oct. 14, 2008) (online at www.treas.gov/press/releases/hp1205.htm).
377
U.S. Department of the Treasury, Secretary Paulson Statement on Stabilizing the Automotive Industry
(Dec. 19, 2008) (online at www.treas.gov/press/releases/hp1332.htm).
378
Treasury staff discussed this issue, along with the overall status of the AIFP as well as the
Administration‟s strategies and plans going forward as New Chrysler and New GM have completed their purchases
of assets through the bankruptcy process, with Panel staff at a Treasury briefing held on July 29, 2009.
379
Senate Finance Committee, Statement of Senator Stabenow, TARP Oversight: Six Month Update, 111th
Cong. (Mar. 31, 2009) (online at
www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/transcripts/congressional/111/congressionaltranscri
pts111-000003088824.html@committees&metapub=CQ-CONGTRANSCRIPTS). At the hearing, Senator
Stabenow highlighted “the difference now that we‟re seeing between the approach with the auto industry, which is
much more modeled on a reorganization approach, and the approach that is being used throughout the financial
services industry. And that is a straightforward subsidization.” She proceeded to ask Professor Elizabeth Warren:
“And what lessons can we learn from the rigorous oversight of the – of the auto industry to learn from that and place
it on the financial institutions that have been receiving TARP funds?” Id.
380
For the set of principles articulated by the Administration, see supra note 183.
381
Congressional Oversight Panel, Testimony of Treasury Secretary Timothy F. Geithner, at 40 (Apr. 21,
2009).
86
assistance,” “it will come with conditions to make sure there is restructuring, accountability, to
make sure these firms emerge stronger in the future.”382 Secretary Geithner also indicated that
where Treasury has had to do exceptional things, it has replaced management and boards, and
cited the government‟s interventions in AIG, Freddie Mac and Fannie Mae as examples.383 An
assessment of Treasury‟s actions, however, suggests that its commitment to this ideal is doubtful
except in those rare circumstances involving government-mandated restructuring efforts.
For example, in order to achieve its goals for the automotive industry at the outset,
Treasury determined that it was necessary for both recipients to formulate long-term viability
plans, which required a credible demonstration of future profitability and alterations to business
models. In addition to forcing Chrysler and GM to develop new viability plans in the
restructuring process, the Treasury auto team negotiated a deal that wiped out shareholders, cut
debt, influenced decisions regarding personnel,384 and subjected creditors to losses. However,
while the FDIC has placed some banks into receivership in the normal exercise of its powers,
none have been forced to develop new viability plans, shareholders have not been wiped out, and
debts have been guaranteed. In addition, Treasury has not forced TARP-recipient financial
institutions to reorganize, nor has it completely changed their boards and managements.
While Treasury has not generally exercised a significant management role with respect to
most of the financial institutions that have received TARP capital investments, it has done so
with the largest and most distressed TARP recipients. For example, Treasury has exercised
significant control over AIG, which received $70 billion in TARP funds under the Systemically
Significant Failing Institutions program (SSFI) (in addition to other assistance provided by the
Federal Reserve). As with the automotive companies, some of AIG‟s management has been
replaced and the company has undergone a restructuring that has resulted in two of its profitable
foreign insurance divisions being spun-off and its financial products division significantly cut
back. However, Treasury has not required AIG to submit a forward-looking viability plan, nor
has AIG been forced into reorganization. Additionally, those with equity stakes in AIG have
seen their positions severely diluted by the government, but they have not been wiped out, in
contrast to the treatment of automotive company shareholders. Companies with contractual ties
to AIG, for instance those that owned AIG-originated credit default swap (CDS) contracts, have
been made whole, unlike some creditors of the automotive companies.
Another significant difference between the various companies in which the government
owns stakes is the manner of holding of equity. The shares that make up the government‟s 77.9
382
Id.
383
Id. at 40-41.
384
In the case of New Chrysler, the entire management team is new, and in the case of New GM, some
senior managers are no longer with the company and the management team is smaller than it was.
87
percent share in AIG are held in a trust for the benefit of the United States Treasury.385 The
Trust Agreement provides that the trustees must act “in or not opposed to the best interests of
Treasury.”386
There are a number of reasons why the Federal Reserve Bank of New York (FRBNY),
and Treasury might have chosen a trust structure. The stated reason was to avoid conflicts of
interest: the Trust Agreement provides that “to avoid any possible conflict with its supervisory
and monetary policy functions, the FRBNY does not intend to exercise any discretion or control
over the voting and consent rights associated with the Trust Stock.”387
There is also the possibility that the shares were placed into a trust so as not to violate the
Government Corporation Control Act (GCCA).388 The GCCA prohibits the government from
owning a corporation without specific Congressional authorization.389 The trust structure also
provides political insulation to shareholder-taxpayers who wear two hats – one as shareholders
who want to maximize the return on their investments, and the second as taxpayers who want the
financial system stabilized. The trustees are advised, however, in exercising their discretion
under the Trust Agreement, that the FRBNY believes that AIG “being managed in a manner that
will not disrupt financial market conditions, [is] consistent with maximizing the value of the
Trust Stock.”390 Professor J.W. Verret testified before the House Oversight and Government
385
AIG Credit Facility Trust Agreement (accessed Aug. 30, 200) (online at
www.newyorkfed.org/newsevents/news/markets/2009/AIGCFTAgreement.pdf) (hereinafter “AIG Credit Facility
Trust Agreement”). Note also that the trust is for the benefit of the United States Treasury, not the U.S. Department
of Treasury. The AIG Trust Agreement explains that “any property distributable to Treasury as beneficiary
hereunder shall be paid to Treasury for deposit into the General Fund as miscellaneous receipts.” Id. at § 1.01.
386
Id. at § 3.03(a). Professor J.W. Verret testified that usually, fiduciaries are tasked to “manage … wealth
to maximize the value for their beneficiaries.” House Oversight and Government Reform Committee, Testimony of
Professor J.W. Verret, Panel II, AIG: Where is the Taxpayer‟s Money Going? (May 13, 2009) (hereinafter “Verret
Testimony”). William Dudley, president and CEO of the FRBNY, testified in March that the “trustees have a
legally binding obligation to exercise all of their rights as majority owner of AIG in the best interests of the U.S.
taxpayer, with the proceeds of any ultimate sale of shares going directly to Treasury of the United States.” House
Committee on Financial Services, Tesimony of William Dudley (Mar. 24, 2009) (online at
www.newyorkfed.org/newsevents/speeches/2009/dud090324.html). Representatives Issa and Bachus have sent
letters to Treasury and SIGTARP calling for an audit of the AIG trust and setting out criticisms of the trust structure,
including the “lack of standard fiduciary duties,” the Trust‟s “broad indemnification of the actions of the trustees,”
and lack of accountability on the part of the trustees. Letter from Representatives Spencer Bachus and Darrell Issa
to Neil Barofsky (Aug. 31, 2009); see also Letter from Representatives Spencer Bachus and Darrell Issa to Secretary
Timothy Geithner (Aug. 31, 2009).
387
AIG Credit Facility Trust Agreement, supra note 385.
388
59 Stat. 597, as amended, 31 U.S.C. § 9101 et seq.
389
31 U.S.C. § 9102. It could be argued that EESA, with its authorization to purchase securities in financial
institutions, provides this authorization.
390
AIG Credit Facility Trust Agreement, supra note 385 at § 2.04(d). Trustee Chester Feldberg testified
that this clause “was put in by the Federal Reserve to express their [its] desire that that issue be considered in the
course … of the trustee‟s deliberations. It was explicitly done in a way that it does not direct the trustees to do
anything.” House Committee on Oversight and Government Reform, Testimony of Chester Feldberg, AIG: Where is
the Taxpayer‟s Money Going? (May 13, 2009).
88
Reform Committee in May 2009 that the trust is also intended to protect the shares from political
influence, by creating “an independent buffer between the short-term political interests of an
administration and the long-term health of the nation‟s financial system.”391
There are a number of differences between the government‟s holdings in AIG and the
automotive companies. Unlike the relationship between AIG and the FRBNY, Treasury holds
no direct supervisory position over the automotive companies, nor does it hold the Federal
Reserve Banks‟ and Board‟s monetary policy function.392 AIG also has a more direct effect on
U.S. financial markets than do the automotive companies.393 This may require more of a buffer
to protect against conflicts of interest, whether such conflicts are potential, actual, or simply
based upon appearance. In addition, Mr. Bloom has announced that Treasury intends to start to
sell its shares in GM by 2010.394 Treasury, therefore, may not have the long-term ownership in
Chrysler and GM that it will likely have in AIG.395
Treasury or Congress might choose to place the government‟s auto shares into a trust.396
The Panel notes that the TARP Recipient Ownership Trust Act of 2009, currently under
consideration in the Senate, would require Treasury to place into a trust the shares of any TARP
recipient of which the government is more than a 20 percent owner.397 This bill is designed to
391
Verret Testimony, supra note 386. He opines that political considerations might create pressure for a
nationally controlled bank to subsidize lending in battleground states. He points to Italy‟s government controlled
banks as an example.
392
Like any other automotive company or TARP recipient, GM is still subject to an array of government
regulations.
393
House Committee on Financial Services, Statement of the Chairman of the Board of Governors of the
Federal Reserve System Ben S. Bernanke, Oversight of the Federal Government‟s Intervention at American
International Group, 111th Cong., at 3 (Mar. 24, 2009) (online at
www.house.gov/apps/list/hearing/financialsvcs_dem/statement_-_bernanke032409.pdf ) (“At best, the consequences
of AIG‟s failure would have been a significant intensification of an already severe financial crisis and a further
worsening of global economic conditions. Conceivably, its failure could have resulted in a 1930s-style global
financial and economic meltdown, with catastrophic implications for production, income, and jobs.”).
394
Ron Bloom COP Testimony, supra note 36 at 26.
395
Edward Liddy has testified that he expects AIG to take three to five years to complete its restructuring
and repay the Treasury and the FRBNY. House Committee on Oversight and Government Reform, Testimony of
AIG Chief Executive Officer Edward Liddy (May 13, 2009) (online at
www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/transcripts/congressional/111/congressionaltranscri
pts111-000003116243.html@committees&metapub=CQ-CONGTRANSCRIPTS&searchIndex=0&seqNum=17).
396
Treasury already has plans to put its shares in Citigroup into a trust. U.S. Department of the Treasury,
Treasury Announces Participation in Citigroup‟s Exchange Offering (Feb. 27, 2009) (online at
www.treas.gov/press/releases/tg41.htm); see also U.S. Department of the Treasury, Citigroup Exchange Offering
Terms (accessed Aug. 30, 2009) (online at www.treas.gov/press/releases/reports/transaction_outline.pdf).
397
Senators Mark Warner (D-VA) and Bob Corker (R-TN) are the original lead sponsors of the TARP
Recipient Ownership Trust Act of 2009. Under this legislative proposal, if the government owns more than 20
percent of a private company, that ownership stake would be placed in an independent trust supervised by three
presidentially appointed trustees (uncompensated) with a with a fiduciary obligation to U.S. taxpayers. The trust
would have a responsibility to sell these assets within 18 months, while trustees could ask for an extension if they
collectively determine that additional time might provide a way to maximize the return on the taxpayers‟ investment.
89
remove any hint of politics from Treasury‟s temporary ownership stakes. Under this proposal,
the trust would have a responsibility to sell these assets within 18 months, with limited
exceptions.398 The Panel takes no view on the specifics of this particular bill, or the details of
establishing any such trust, but notes that problems identified with the AIG trust structure should
be addressed in any future trust. In his testimony before the House Oversight and Government
Reform Committee in May, Professor Verret advanced three criticisms of the AIG trust structure.
First, he stated that the AIG trustees are required to “manage the trust in the best interests of
Treasury, rather than the U.S. taxpayers specifically.” Second, as discussed above, he believes
that the trust should explicitly direct the trustees to act to maximize the value for the trust
beneficiaries. Third, he stated that the Trust Agreement might allow trustees to benefit
personally from investment opportunities that might belong to AIG.399 All of these criticisms
could be addressed in the drafting of a trust agreement for Chrysler and GM shares.
Fewer inherent conflicts and a shorter timeframe make the need for a trust for the
Chrysler and GM shares less pressing than for the AIG shares, but it could still provide benefits.
Placing the shares in a trust could also avoid the appearance of conflict. Even if no direct
conflict exists, a trust could prevent the use or appearance of political influence in the
government‟s ownership. Finally, placing the shares in a trust could also prevent any potential
violation of the GCCA.400
The differences between the current treatment of the automotive companies and financial
institutions might be due to several factors. First, Treasury potentially had greater leverage in its
investment in Chrysler and General Motors than it did with the banking industry, since the
automotive companies, being extremely close to bankruptcy, came to the federal government for
assistance, while at least most of the banks receiving TARP assistance through the CPP have
been perceived as solvent. Second, some of these alleged differences (i.e., management changes,
creditor and shareholder treatment) were a direct result of Chrysler and GM‟s Section 363 sales,
which TARP recipient banks have not faced. However, the state of many banks‟ balance sheets
(and their potential need to undergo substantial balance sheet restructuring or face insolvency)
was uncertain when EESA was passed in October 2008. Finally, these differences underscore
Senator Warner believes that “this legislation will go a long way toward providing additional assurances that a
political agenda is not being pursued through government ownership in any of these companies and that these
companies also are being dealt with fairly.” Mark R. Warner, Exit Strategy Needed (op-ed), Washington Times
(July 27, 2009) (online at www.washingtontimes.com/news/2009/jul/26/exit-strategy-needed/).
398
Id.
399
Verret Testimony, supra note 386.
400
The Panel takes no position as to whether the law is being violated if the shares are not placed in a trust.
90
the unique role that banks play in the larger economy. To fix the economy, Treasury recognized
the need to repair the banking system and decided to recapitalize and shore up the banks.401
3. Government as Investor: Stewardship Issues
Section F above sets out the amounts of taxpayers‟ funds that are at risk. Section G6
below raises serious doubts that those funds will ever be recovered. While the ultimate goal, as
the Administration recognizes, is to ensure that the companies are on a viable path to profitability
such that they may begin the process for an IPO, the prudent course is obviously to hold the
stock until an IPO presents an opportunity to at least recoup the government‟s investment, if not
make some profit. There is no advantage, however, in rushing toward an IPO while the
taxpayers‟ investment is still deeply underwater and all projections suggest that it will be a
matter of years before the companies return to profitability.
In the meantime, the government must ensure that the investors – i.e., the U.S. taxpayers
– are provided with adequate information to evaluate the companies‟ ongoing performance.
During the Panel‟s Detroit field hearing, Mr. Bloom testified that both companies will file
reports with the government, which will then be disclosed to the public on a quarterly basis.402
He did not say how frequently these reports will be made to the government, except that they
would be “periodic.”403 Mr. Bloom also testified that New Chrysler and New GM will become
voluntary reporting companies and file reports with the SEC.404 These filings, he said, would
begin “shortly” although “not immediately.”405 Neither during public testimony nor during
meetings with members of the Panel or Panel staff has Treasury stated a date on which such
filings or reports will begin. It is understandable that assembling the data and analysis that such
filings require is challenging given that both companies – in particular New GM – are large and
complex and that their creation through bankruptcy has rendered each company‟s financial
structure even more complex. Chrysler‟s recent history as a non-filing company must also be
acknowledged. However, companies in the private sector are often required to assemble such
data and analysis on a very tight timeline. The Panel expects that New Chrysler and New GM,
which are answerable to a much wider segment of the public than any other public company, will
endeavor to meet the same type of deadline.
It is also unclear what will be included in these reports. Mr. Bloom testified that the first
reports from New Chrysler and New GM will not contain all of the information that an SEC
401
Henry Paulson Congressional Testimony, supra note 321. Senate Banking Committee, Testimony of
Treasury Secretary Timothy Geithner, TARP Oversight, (May 20, 2009) (online at
www.treas.gov/press/releases/tg139.htm).
402
403
404
405
Ron Bloom COP Testimony supra note 36.
91
filing would typically include.406 The reports will include “traditional measures of revenue and
profitability that a normal investor would want to know about.”407 Mr. Bloom did not provide
any additional information about what might be included in these reports, such as information
about risks, management, major events, or any other data that is typically required to be included
in SEC filings.
In addition to information about revenues and profitability, New Chrysler and New GM
should provide the taxpayer investors with a set of metrics by which the companies‟ success can
be measured, along with periodic updates regarding progress toward those goals.408 The
companies should also disclose to what extent internal controls, that is, clearly defined processes
and procedures relating to the communication of information, accountability for individual
employees, etc., have been established to ensure the companies‟ plans are being properly
implemented and executed. To date, neither Treasury nor either company has disclosed such
information.
Other corporate governance changes have begun with the appointment of well-qualified
and independent409 directors.410 Given the large public investment in these companies, it may be
appropriate to require even stricter guidelines than current law mandates. For example, the
companies could require all of their directors to be independent, instead of only a portion of
them. Board members could be restricted from serving on the boards of other companies, or
could at least be restricted in the number or type of other board positions they could hold. The
companies could impose term limits on board members, to ensure that no director becomes too
entrenched in the company or too close to its management. As TARP recipients, the automotive
companies are already subject to restrictions on executive compensation411 and would be covered
406
407
408
A forthcoming GAO report, due to be made public in mid-October, will recommend the provision of
such metrics.
409
See supra notes 71 and accompanying text. See also the recommendations regarding alignment of
interests through compensation guidelines discussed in the Panel‟s special report on regulatory reform, discussed at
note 372 supra.
410
See supra note 71. See also discussion of this issue supra Section B.
411
The Stimulus Bill imposed executive compensation restrictions on all TARP recipients. American
Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, § 7001. Treasury announced in February that
companies receiving subsequent TARP assistance would be subject to certain limitations on executive compensation
including, most notably, a $500,000 cap on executive annual salaries; any compensation above this amount would
have to be made in the form of restricted stock. U.S. Department of the Treasury, Treasury Announces New
Restrictions on Executive Compensation (Feb. 4, 2009) (online at www.financialstability.gov/latest/tg15.html)
(hereinafter “Treasury Executive Compensation Statement”). If the new automobile companies are to provide SECstyle disclosures, these disclosures would presumably include Compensation Discussion and Analysis (CD&A),
which provides information about and the rationale behind the process by which executive compensation is
determined.
92
by the SEC‟s recent “say-on-pay” proposals.412 The automotive companies could adopt their
own more tailored compensation guidelines, however, and ensure that compensation for both
executives and board members is based on clearly articulated performance criteria and aligned to
long-term performance. Board members could, for example, be required to hold a certain
amount and type of company stock to ensure the best alignment of director and shareholder (i.e.,
taxpayer) interests.
4. Government Involvement in Bankruptcy Proceedings
Bankruptcy law is intended to provide for an orderly reorganization or liquidation of
failing businesses. While the various stakeholders in a failed business may generally be
expected to feel strongly about the treatment of their claims, the intensity of public debate
surrounding the Chrysler and GM reorganizations was high. Proponents of the plan denounced
bondholders holding out for larger equity stakes in exchange for retiring their debt413 and
President Obama declared, “[the holdout bondholders] were hoping that everybody else would
make sacrifices, and they would have to make none. Some demanded twice the return that other
lenders were getting. I don‟t stand with them.”414 One disclosed e-mail allegedly reveals a Task
Force member angrily asking, “You‟re telling me to bend over to a terrorist like Lauria [the lead
attorney for Chrysler bondholders]?”415 Representative John Carter (R-TX) noted on the House
floor that according to Thomas Lauria, “Perella Weinberg Partners was directly threatened by the
White House and, in essence, compelled to withdraw its opposition to the Obama Chrysler
restructuring deal under the threat that the full force of the White House press corps would
destroy its reputation if it continued to fight.”416 Recalcitrant bondholders and their supporters
412
The proposed “say-on-pay” regulations would require public companies to subject decisions regarding
executive compensation to a non-binding shareholder vote. Securities Exchange Commission, Shareholder
Approval of Executive Compensation of TARP Recipients, Release No. 34-60218 (July 1, 2009) (online at
www.sec.gov/rules/proposed/2009/34-60218.pdf) (hereinafter “SEC Release No. 34-60218”).
413
See, e.g., Felix Salmon, Time for Chrysler‟s bondholders to man up and move on, Reuters (May 4,
2009) (online at blogs.reuters.com/felix-salmon/2009/05/04/time-for-chryslers-bondholders-to-man-up-and-moveon/) (hereinafter “Felix Salmon May 4 Reuters Report); Executive Office of the President, Remarks by Lawrence H.
Summers at the 2009 National Conference of the Council on Foreign Relations, at 4 (June 12, 2009) (online at
www.cfr.org/publication/19618/prepared_remarks_by_lawrence_h_summers_director_of_the_national_economic_c
ouncil.html?breadcrumb=%2Fbios%2F1001%2Flawrence_h_summers) (hereinafter “Lawrence Summers Council
on Foreign Relations Remarks”) (“There is nothing at all remarkable about the way in which finance was provided
during the Chrysler or General Motors transactions.”); Floyd Norris, Why Chrysler‟s Bondholders Should Stop
Whining, New York Times (May 1, 2009) (online at www.nytimes.com/2009/05/02/business/02norris.html?dlbk)
(hereinafter “Floyd Norris May 1 New York Times Report”).
414
White House April 30 Remarks on Auto Industry, supra note 111.
415
Neil King Jr. and Jeffrey McCracken, US Pushed Fiat Deal on Chrysler, Wall Street Journal (June 6,
2009) (online at online.wsj.com/article/SB124424451815990495.html) (hereinafter “Neil King Jr. and Jeffrey
McCracken June 6 Wall Street Journal Report”). See especially emails between Task Force officials and Chrysler
legal counsel posted with article.
416
Congressional Record, Statement of Representative John Carter (R-TX), H5086 (May 4, 2009)
(hereinafter “Representative Carter May 4 Statement”).
93
struck back, alleging that the “government is penalizing people…for having funded [their]
retirement with…bonds” and that bondholders, especially small bondholders, were “being
ignored in negotiations and singled out to bear the greatest share of the cost of restructuring.”417
Others noted how the “mauling of GM creditors tells investors not to invest in TARP banks
because everything this Treasury touches turns to politics.”418
The rhetoric in the legal debate is perhaps more tempered but positions are just as
strongly held. The Panel does not second guess court decisions and this report is not a law
review article, but the extensive involvement of Treasury in structuring419 and defending the two
transactions throughout the bankruptcy process, and the impact of the court decisions on the
financial markets, requires that the Panel inquire into the legal issues involved.
There remains an ongoing challenge to the Chrysler bankruptcy. Both the Chrysler and
GM 363 sales were approved by the respective courts,420 and on appeal the Second Circuit
affirmed the Chrysler opinion.421 The Supreme Court did not422 intervene in the Chrysler
bankruptcy. However, on September 3, 2009, the Indiana Pension Funds filed a petition for
certiorari to the Supreme Court to appeal the Second Circuit‟s decision. As of the date of this
Report, it is unknown whether the Court will grant cert.423
The two cases have nonetheless attracted both both criticism and support among leading
academics. The issues center on the use of the 363 sale in the auto bankruptcies.424 It would be
misleading to suggest that there are only two sides to the academic debate surrounding the
417
Dennis Buchholtz, GM Bondholders Are People Like You and Me, Wall Street Journal (op-ed), (May 27,
2009) (online at online.wsj.com/article/SB124338330278956585.html) (hereinafter “Buchholtz May 27 WSJ OpEd”) ; see also Statement from Non-TARP Lenders of Chrysler, Wall Street Journal (Apr. 30, 2009) (online at
blogs.wsj.com/deals/2009/04/30/statement-from-non-tarp-lenders-of-chrysler/) (hereinafter “Statement from NonTARP Chrysler Lenders”).
418
Gettelfinger Motors, Wall Street Journal (May 4, 2009) (online at
online.wsj.com/article/SB124105303238271343.html) (hereinafter “WSJ May 4 Report”).
419
See Sections B and D of this report.
420
In re Chrysler LLC, et al., 405 B.R. 84 (Bankr. S.D.N.Y. 2009) and In re GMC, 407 B.R. 463 (Bankr.
S.D.N.Y. 2009).
421
Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766 (2d Cir. Aug.
5, 2009).
422
The Supreme Court issued a temporary stay of the bankruptcy court‟s sale order pending appeal.
Shortly thereafter, the Court removed the stay, noting that the appellants failed to meet their burden of showing that
the delay was justified. However, the Court noted that the “denial of stay is not a decision on the merits of the
underlying legal issues.” Indiana State Police Pension Trust, et al v. Chrysler LLC, et al, 129 S. Ct. 2275 (2009).
423
See supra note 55.
424
In both the Chrysler and GM cases, parties argued that the Secretary of Treasury exceeded his statutory
authority and violated the Constitution by using TARP money to finance the transactions. In each case, the
presiding court held that the objectors lacked standing to raise this issue or that the issue was moot. For more in
depth discussion, see Section G(1)(b) of this report.
94
Chrysler and GM bankruptcies, but academics generally agree on certain points. Scholars
acknowledge that 363 sales had been used to resolve Chapter 11 cases long before the recent
Chrysler and GM bankruptcies and that such sales have grown increasingly popular in the last
few years.425 Scholars also agree that the Code does not restrict the manner in which postpetition financing is used, including distributions made to certain creditors. Moreover, no
academic disagrees that the government‟s additional loans of approximately $4.96 billion to
Chrysler on April 29, 2009 and $30.1 billion to GM on June 3, 2009 constituted post-petition
financing.
Instead, the debate among academics focuses more narrowly on the way in which the 363
sale was structured and the impact of the sale on GM‟s and Chrysler‟s prepetition creditors. In
Chrysler,426 the United States Bankruptcy Court for the Southern District of New York reviewed
the 363 sale procedures. Relying on the Lionel case,427 the bankruptcy court noted that the
Second Circuit rejected a literal interpretation of Section 363, which would impose no limitations
on the sale of estate assets, reasoning that such an interpretation would undermine “the
congressional scheme” established for corporate reorganization.428 The bankruptcy court also
observed in Lionel the policy issues involved in balancing the debtor‟s ability to sell assets and a
creditor‟s right to an informed vote on confirmation of a plan. Noting that the Lionel court held
there must be some articulated business justification for a sale of property outside the normal
course of business,429 the bankruptcy court found that the proposed sale of assets to an entity
425
See, generally, What‟s Good For General Motors, supra note 258 at 10, where, referring to the use of
Section 363, Professor Adler writes, “bankruptcy courts have increasingly, and usefully conducted all asset sales.”
See also Assessing the Chrysler Bankruptcy, supra note 240, where Professors Roe and Skeel note that (“in time
courts became more comfortable with [363 sales], partly because it makes sense for a failing business, partly
because the general merger market deepened and thickened in the 1980s. Such sales became frequent in Chapter
11.”).
426
In re Chrysler LLC, et al., 405 B.R. 84 (Bankr. S.D.N.Y. 2009).
427
In re Lionel Corp., 722 F.2d 1063 (2d Cir. 1983) (finding that a bankruptcy judge must have substantial
freedom to tailor his orders to meet differing circumstances and concluding there has to be some articulated business
justification for the use, sale or lease of property outside the ordinary course of business).
428
429
The GM court lists seven factors the Lionel court provided to determine whether a good business reason
exists. The GM court adds four more factors in its opinion that are also to be taken into consideration. “In making
the determination as to whether there is a good business reason to effect a 363 sale before confirmation, the Lionel
court directed that a court should consider all of the „salient factors pertaining to the proceeding‟ and „act to further
the diverse interests of the debtor, creditors and equity holders.‟ It then set forth a nonexclusive list to guide a court
in its consideration of the issue: (1) the proportionate value of the asset to the estate as a whole; (2) the amount of
elapsed time since the filing; (3) the likelihood that a plan of reorganization will be proposed and confirmed in the
near future; (4) the effect of the proposed disposition on future plans of reorganization; (5) the proceeds to be
obtained from the disposition vis-a-vis any appraisals of the property; (6) which of the alternatives of use, sale or
lease the proposal envisions; and „most importantly perhaps,‟ (7) whether the asset is increasing or decreasing in
value. As the Lionel court expressly stated that the list of salient factors was not exclusive, this Court might suggest
a few more factors that might be considered, along with the preceding factors, in appropriate cases: (8) Does the
estate have the liquidity to survive until confirmation of a plan?; (9) Will the sale opportunity still exist as of the
time of plan confirmation?; (10) If not, how likely is it that there will be a satisfactory alternative sale opportunity,
95
sponsored by Fiat was necessary to preserve the value of Chrysler‟s business and maximize the
value of the bankruptcy estate.
In examining whether the Fiat sale was a sub rosa plan of reorganization, or a plan that
violated bankruptcy‟s priority rules, the bankruptcy court focused on the fact that the bankruptcy
estate received fair value for the assets being sold. The bankruptcy court also noted that the $2
billion paid by New Chrysler for the assets would be distributed entirely to the secured creditors,
thus creating a bigger payout for these creditors than they would receive in liquidation. The
bankruptcy court recognized that some creditors of the prepetition debtor (Old Chrysler),
specifically the UAW Trust and the UAW, entered into agreements with the buyer of the assets
(New Chrysler), and these creditors received ownership interests in the buyer (New Chrysler).
Nonetheless, the bankruptcy court concluded that this fact did not “transform a sale of assets into
a sub rosa plan”430 because neither the UAW Trust nor the UAW received any distributions on
account of their prepetition claims. Instead, these payments and ownership interests were the
result of negotiations with the buyers (New Chrysler). The bankruptcy court observed:
In negotiating with those groups essential to is viability, New Chrysler made
certain agreements and provided ownership interests in the new entity, which was
neither a diversion of value from the Debtors‟ assets nor an allocation of the
proceeds from the sale of the Debtors‟ assets. The allocation of ownership
interests in the new enterprise is irrelevant to the estates‟ economic interests.431
On appeal, the Second Circuit Court of Appeals adopted the bankruptcy court‟s reasoning
and affirmed the lower court‟s ruling. The appellate court reiterated that Lionel does not require
an “emergency” to justify a 363 sale, but merely requires that a court find there is a “good
business reason.” The appellate court agreed with the bankruptcy court that the 363 sale did not
constitute a sub rosa plan. It also agreed that the transaction was consistent with creditor priority
rules because all equity stakes in New Chrysler were entirely attributable to new value, including
government loans, new technology contributed by Fiat, and new management – none of which
were assets of the debtor‟s bankruptcy estate.432
The Second Circuit rejected appellants‟ argument that the 363 sale violates the Code by
impermissibly subordinating appellants‟ interests as secured lenders on the ground that they
lacked standing to make such objection. On this point, the Chrysler bankruptcy contains a twist
or a stand-alone plan alternative that is equally desirable (or better) for creditors?; and (11) Is there a material risk
that by deferring the sale, the patient will die on the operating table?” In re GMC, 407 B.R. 463, 490 (Bankr.
S.D.N.Y. 2009).
430
431
432
5, 2009).
96
that makes the bankruptcy ruling more complicated to follow. The appellate court noted that
long before the Chrysler bankruptcy, the appellants and the other first lien-holders had agreed by
contract that, in the event of bankruptcy, an agent could be authorized to act on their behalf at the
request of lenders holding a majority of Chrysler‟s debt. By the terms of the agreement, any
action taken by the agent is binding on all lenders, including those in disagreement.433 After
Chrysler filed for bankruptcy, the majority of first lien-holders authorized the agent to act,434 and
the agent subsequently consented to the sale under Section 363(f)(2).435 Because the consent
was binding on appellants as per their credit agreement, the appellate court found that they
lacked standing to make this objection. Appellants asserted that the majority of lenders were
bullied into approving the sale, but they could produce no evidence to support the claim. As a
result, the Second Circuit dismissed this allegation.
The General Motors bankruptcy court followed the Second Circuit appellate court in
holding that a 363 sale was appropriate in that case.436 The cases were similar in many respects,
including the assertion that a quick sale would maximize the amount to be received by the
bankruptcy estate. A major practical difference between the two cases, however, is that the
assets of the debtor (Old GM) were sufficient that its secured creditors could be paid in full,
which eliminated many of the objections that had been raised in Chrysler. Again, the court
focused on the difference between the amount that creditors of Old GM would receive in
liquidation and the higher amount that the bankruptcy estate would receive by reason of the sale.
Evercore, GM‟s financial advisor, issued a fairness opinion that concluded that the purchase
price was fair to GM from a financial point of view and the court stated that no contrary evidence
was submitted. The court noted that Section 363 imposed no limits on the proportion of the
debtor‟s estate that could be sold under that section. “If…the transaction has „a proper business
justification‟ which has the potential to lead toward confirmation of a plan and is not to evade the
plan confirmation process, the transaction may be authorized.”437 The court specifically noted
that all or substantially all the debtor‟s assets may be sold in a 363 sale. The court found that a
proper business justification existed in the GM case. As in the Chrysler case, the court found
that there was no sub rosa plan arising from the fact that contracts with certain creditors of the
debtor (Old GM) were assumed by the buyer (New GM) or that some creditors received
ownership interests in the buyer (New GM). Once again, the court found that the dealings with
433
434
5, 2009).
5, 2009).
435
“The trustee may sell property… free and clear of any interest in such property of an entity other than
the estate, only if – such entity consents.” 11 U.S.C. § 363(f)(2).
436
437
In re GMC, 407 B.R. 463, 491 (Bankr. S.D.N.Y. 2009).
5, 2009).
97
the buyer (New GM) were part of the post-bankruptcy negotiations that were designed to
promote the survival of the business. The court observed:
The Court senses a disappointment on the part of dissenting bondholders that the
Purchaser did not choose to deliver consideration to them in any manner other
than by the Purchaser‟s delivery of consideration to GM as a whole, pursuant to
which bondholders would share like other unsecured creditors – while many
supplier creditors would have their agreements assumed and assigned, and new
GM would enter into new agreements with the UAW and the majority of dealers.
But that does not rise to the level of establishing a sub rosa plan. The objectors‟
real problem is with the decisions of the Purchaser, not with the Debtor, nor with
any violation of the Code or caselaw.438
Professor Adler contends that the sale in Chrysler was irregular and inconsistent with the
principles that undergird the Code. He notes that assets can under appropriate circumstances be
sold “free and clear” in a 363 sale, but that in Chrysler, the buyer (“New Chrysler”) took the
assets subject to specified obligations to the UAW Trust. He argues that if such obligations had
not been a part of the sale, then the price for the assets might have been higher. Money that
might otherwise have been available to repay secured creditors may thus have been withheld, in
Professor Adler‟s view, by the purchaser in order to satisfy obligations to the UAW, with the
result being that the purported sale was also a distribution of the sale proceeds seemingly
inconsistent with contractual priority among the creditors. Professor Adler does not dispute that
363 sales are a common and effective means of resolving Chapter 11 reorganizations,439 but he
does argue that the Chrysler sale in particular was conducted in a manner inconsistent with the
Code.
In response to the assertion that the bondholders received more than they would in
liquidation, Professor Adler states that the nature of the process meant that the issue of whether
the secured bondholders received the return that was due to them cannot be known: there was no
market test because of the short amount of time permitted for the Section 363 bid and the
unusual requirement in the bidding procedures that the purchaser assume the obligations to the
UAW Trust.440 The bankruptcy court‟s approval of the 363 sale meant that the rules governing
438
In re GMC, 407 B.R. 463, 496 (Bankr. S.D.N.Y. 2009).
439
What‟s Good For General Motors, supra note 258 at 9-10 (Sept. 1, 2009) (“So long as a sale of a firm‟s
assets is subject to a true market test, a sale may be the best and most efficient way to dispose of an insolvent debtor.
Indeed, bankruptcy courts have increasingly and usefully conducted all-asset-sales. The key is to ensure a true
market test….”).
440
Professors Roe and Skeel also adopt this opinion in their paper. Assessing the Chrysler Bankruptcy,
supra note 240.
98
more traditional bankruptcies that involve the confirmation of a reorganization plan did not
apply.441
Professor Adler argues that the bidding process in the GM bankruptcy, following the
blueprint of the Chrysler bankruptcy, also did not allow for a true market valuation. As in the
Chrysler case, the court required that any bidders, absent special exemption, must assume
liabilities to the UAW as a condition of purchase. Professor Adler differentiates the two cases on
the grounds that in GM there was no dissent by holders of the senior secured debt, much of
which belonged to the U.S. and Canadian governments. He argues that even though this made
approval easier, the decision still set a dangerous legal precedent.442
Professor Adler does not object to the eventual outcome of either transaction443 as much
as the fact that the process used does not make it clear whether the creditors were equitably
treated.444 He suggests a change to the Code to provide that Section 363 could not be used to sell
all or substantially all of a debtor‟s assets on condition that the purchaser assume or pay some
but not all of the claims of prepetition creditors; he would also have the bankruptcy law require
that such a sale comply with applicable state law.445
Professors Roe and Skeel assert that the 363 sale in Chrysler amounted to a sub rosa
plan, in that it allocated billions of dollars without the checks that a plan of reorganization
requires.446 They argue that the appellate courts have developed a strong set of standards for 363
sales, applying makeshift remedies to compensate for the fact that Section 363 does not provide
for the procedural safeguards embodied in Section 1129.447 They argue that the safeguards are
particularly important if the transaction appears to be a sub rosa plan, determining critical
Section 1129 features; and if the plan does determine critical Section 1129 features, such as
judicial valuation, creditor consent, and an auction, it can only do so if the court fashions a
441
See, generally, Section (C)(1)(b) of this report.
442
What‟s Good For General Motors, supra note 258, at 7-8.
443
Professor Adler stated, “[M]y criticism is not with the sale. It is with the restrictions on the sale.”
Congressional Oversight Panel, Testimony of Charles Seligson Professor at New York University School of Law
Barry E. Adler, at 124 (July 27, 2009) (hereinafter “Barry Adler COP Testimony”).
444
Douglas Baird, the Harry A. Bigelow Distinguished Service Professor at the University of Chicago Law
School, testified on Automotive Industry bankruptcies in front of the U.S. House of Representatives Subcommittee
on Commercial and Administrative Law Committee on the Judiciary. Baird testified that he believed the bankruptcy
process was flawed and that Chrysler and GM decisions set potentially dangerous precedents. However, he also
stated that government intervention and an aggressive use of the bankruptcy code was necessary to minimize the
cost to the taxpayer of keeping those companies alive. House Committee on the Judiciary, Subcommittee on
Commercial and Administrative Law, Testimony of Harry A. Bigelow Distinguished Service Professor at University
of Chicago Law School Douglas Baird, Ramifications of Auto Industry Bankruptcies, Part III (July 22, 2009)
(judiciary.house.gov/hearings/pdf/Baird090722.pdf) (hereinafter “Douglas Baird Congressional Testimony”).
445
What‟s Good For General Motors, supra note 258 at 9-11.
446
447
Section (C)(1)(b) of this report.
99
makeshift safeguard.448 There was no such safeguard in the Chrysler case, they argue, and
Section 1129 was hardly mentioned.449 Similar to Professor Adler‟s views discussed above,
Professors Roe and Skeel contend that the bidding process was flawed because it prevented a fair
valuation of the company. They conclude that the Chrysler bankruptcy does not comply with
good bankruptcy practice.
Professor Lubben, who furnished a paper titled No Big Deal: The Chrysler and GM
Cases in Context, which appears at Annex B450 of this report, and gave testimony at the Panel‟s
Detroit field hearing,451 takes a practical view of the reorganizations. Commenting on the
arguments of academics speaking against the automotive bankruptcy cases, he asserts that their
arguments “are not bankruptcy arguments but rather rhetorical arguments.”452 Professor Lubben
points out that liquidation was the only practical alternative to the Section 363 sales in both cases
because no financer other than the federal government would have stepped forward. Moreover,
in the event of liquidation, the recovery received by creditors by reason of the sale would clearly
be less than what they received as a result of the sale. Professor Lubben is of the opinion that
neither the use of Section 363 to sell substantially all Chrysler and GM‟s assets nor the speed by
which the 363 sales were executed was unusual. He details the many bankruptcy proceedings
that have used this structure, which has been employed with increasing frequency since the mid
1990s.453 Professor Lubben concludes, “Congress may well decide, as a matter of policy, that
this should end, but until it does, there is little to the idea that these cases are „unprecedented‟ in
their structure. The identity of the DIP lender is novel, but what happened is routine. And the
identity of the lender is not a bankruptcy issue.”454
448
Professor Lubben notes that while all circuits developed safeguards to prevent sub rosa plans, the
precise safeguards vary by circuit. For example, “in the second circuit the rule seems to be a subpart of that
jurisdiction‟s larger requirement that a pre-plan sale be supported by a good business justification.” While the Fifth
Circuit requires “pre-plans to comply with the Bankruptcy Code‟s rules for plan confirmation.” He notes that the
Second Circuit has expressly rejected this approach. No Big Deal: The Chrysler and GM Cases in Context, supra
note 235.
449
The Second Circuit addresses some of these “safeguards” and finds them to be present in the Chrysler
transaction. For instance, the court found that “to preserve resources” and because the “business was hemorrhaging
cash,” was a valid business reason justifying the expedient sale under 363. The court also found that the plan did not
constitute a sub rosa plan because “all equity stakes in New Chrysler were entirely attributable to new value… ”
Moreover, in determining that secured creditor‟s rights were not infringed upon under section 1129, the court finds
that the parties lack standing to raise such issue because the furnished consent under an agency theory. Ind. State
Police Pension Trust v. Chrysler LLC (In re Chrysler LLC), 2009 WL 2382766 (2d Cir. Aug. 5, 2009).
450
No Big Deal: The Chrysler and GM Cases in Context, supra note 235.
451
Congressional Oversight Panel, Testimony of Daniel J. Moore Professor of Law at Seton Hall
University School of Law Stephen J. Lubben (July 27, 2009).
452
No Big Deal: The Chrysler and GM Cases in Context, supra note 235.
453
Stephen Lubben COP Testimony, supra note 451 at appendix A.
454
No Big Deal: The Chrysler and GM Cases in Context, supra note 235 at 3.
100
Two courts have reviewed the 363 sale. Although the objections to the sale were
vigorously argued by the creditors, the courts specifically determined that there was no factual
basis for concluding either that the sales were defective or that they constituted a sub rosa plan
of reorganization that deprived the creditors of their Chapter 11 protections. While a number of
bankruptcy commentators agree with Professor Adler that the bankruptcy laws regarding 363
sales should be amended, few have criticized either the factual findings of the bankruptcy court
or the application of current law to those facts.
The bankruptcy court addressed the bidding process issues raised by Professor Adler in
its opinion. The court noted Chrysler‟s inability to find a company to merge with after an
extensive two-year search and concluded that the Fiat transaction in addition to government
protection was an “opportunity that the marketplace alone could not offer.”455 Capstone‟s
Executive Director provided expert valuation testimony, which was not rebutted, and indicated
the $2 billion Chrysler‟s first lien creditors would receive following the sale exceeded the value
they would recover in immediate liquidation.456 Moreover, the value of the company continued
to decrease because it was burning through cash, thus further reducing the value creditors would
collect as time went on.457 Lastly, the court states that the first lien credit holders458 could have
refused to consent to the sale or could have credit bid instead of agreeing to take cash, without
directly mentioning the objections of the minority first lien holders.459
There was a specific finding of fact in the bankruptcy court that, according to the court,
permitted bids to be made without restrictions, which differs from the conclusion advanced by
Professor Adler.460 In the bankruptcy court‟s Bidding Procedures Order, “language was added to
indicate that a „Qualified Bid‟ included not only bids that met the previously set forth
requirements but, in addition, any bid that „after consultation with the Creditor‟s Committee,
Treasury and the UAW, [was] determined by the Debtors in the exercise of their fiduciary duties
to be a Qualified Bid.‟” 461 According to the bankruptcy court, the procedures adopted were
adequate to “encourage” any sophisticated party to bid on the Chrysler assets.462 This means that
the issue of bidding procedures was fully presented to the court and argued by the parties. The
455
In re Chrysler LLC, et al., 405 B.R. 84, 96 (Bankr. S.D.N.Y. 2009). No restrictions were placed on the
sale of Chrysler‟s assets during the two year period it was marketed prior to filing for bankruptcy, whereas under the
the 363 sale, New Chrylser assumed particular liaibities of Old Chrysler.
456
457
458
These lenders included receipients of TARP money, as discussed in Section (C)(1) of this report.
459
460
In re Chrysler LLC, et al., 405 B.R. 84, 108-09 (Bankr. S.D.N.Y. 2009).
461
462
101
Panel has no access to information that was not presented to the court and no basis for
concluding that the courts‟ factual findings were wrong.
The Second Circuit did not discuss the bidding procedures in its opinion. In laying out
the facts, the opinion briefly states that the bankruptcy court approved the bidding procedures
and, apart from New Chrysler, no other bids were forthcoming.463 The Indiana Pensioners
appealed the bankruptcy courts‟ conclusion to the Second Circuit, but that court, with the full
record before it, did not sustain any such objection.
Other commentators have moved past the legal analysis to the political and policy
implications of the automobile bankruptcies, dubbing the auto bankruptcies as “Obama‟s
Orwellian interventions.”464 They are particularly disturbed by what they see as the
Administration‟s arm-twisting of Chrysler‟s TARP creditors and what they claim is a violation
of the absolute priority rule to save the politically favorable union and its pension.465 In their
view, the “sham sale” of Chrysler, even if not per se unconstitutional, violates at least the spirit
of the Takings466 and Contracts467 Clauses of the United States Constitution. As they see it, the
Administration‟s interference may be ineffectual in the long-run; although “Obama may have
helped save the jobs of thousands of union workers whose dues, in part, engineered his election,”
the Administration has instigated an “untold number of job losses in the future caused by
trampling the sanctity of contracts today.”468 The current Administration, however, is not alone
to blame in their opinion; rather, “long ago Chrysler and GM should have been allowed to bleed
to death under ordinary bankruptcy rules, without government subsidy or penalty.”469
The Panel agrees with commentators on all sides of the political spectrum that whether
the government should have moved to rescue the automotive industry is a policy question with
wide-reaching implications. However, the Second Circuit Court of Appeals held that the legal
issues were correctly decided, and the Panel has no evidence to the contrary.
5. The Role Played by Treasury and Transparency with Respect to that Role
463
5, 2009).
464
Richard A. Epstein, The Deadly Sins of the Chrysler Bankruptcy, Wall Street Journal (May 11, 2009)
(online at www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-columnists-epstein.html) (“Richard
Epstein May 11 Wall Street Journal Op-Ed”).
465
Id.; see also Peter Morici, Treasury Prepares for Chrysler Bankruptcy, FinFacts (Apr. 24, 2009) (online
at www.finfacts.com/irishfinancenews/article_1016519.shtml) (hereinafter “Treasury Prepares for Chrysler
Bankruptcy”).
466
Richard Epstein May 11 Wall Street Journal Op-Ed supra note 464.
467
Todd J. Zywicki, Chrysler and the Rule of Law, Wall Street Journal (May 13, 2009) (online at
online.wsj.com/article/SB124217356836613091.html) (hereinafter “Chrysler and the Rule of Law”).
468
Id.
469
Richard Epstein May 11 Wall Street Journal Op-Ed supra note 464.
102
This section assesses the transparency of Treasury‟s decision-making and evaluates its
performance during its involvement with the automotive industry, keeping in mind its stated
objectives with respect to these TARP investments, as discussed above in Section D.
In many respects, Treasury has presented its plans and decisions with respect to its TARP
investments in Chrysler and General Motors on a prompt and regular basis. Mr. Bloom has
recently testified before House and Senate congressional committees as well as the Panel, and
various documents (e.g., loan agreements, program guidelines) were released concerning
particular aspects of Treasury‟s investments. Given the gravity of the challenges and issues that
Treasury has faced during the financial crisis, the Panel recognizes Treasury‟s attempts to keep
the public informed as to the decisions it has made.
The Panel does question, however, some aspects of Treasury‟s transparency with respect
to the process. Treasury has failed to follow a consistent and cohesive message with respect to
its rationale for extending TARP to the automotive industry and its stated objectives in doing so.
Treasury‟s intervention in the automotive industry could be attributed to one of (or a
combination of) three broad policy objectives: (1) the prevention of a systemic threat to the U.S.
financial markets and broader economy; (2) the advancement of social policy (such as tempering
the impact of unemployment, environmental improvement, or provision of retirement benefits);
or (3) the maintenance of a viable American automotive presence in the United States. At
varying times, Treasury‟s public statements have addressed the merits of each of these objectives
and their benefits to the overall economy; however, it is unclear which objective, or combination
thereof, Treasury deems most important – or if all three carry equal weight.470 As such, in the
absence of a clearly articulated unifying strategy, it is difficult for outside observers to determine
which metrics are the best indicators of Treasury‟s performance.
The Panel recognizes that thorough diligence was conducted by Treasury in evaluating
each company‟s viability plan. In his speech on the automotive industry on March 30, President
Obama noted that “after careful analysis [of the Chrysler and GM initial viability plans submitted
on February 17], we‟ve determined that neither [automotive company] goes far enough to
warrant the substantial new investments that these companies are requesting.”471 The Panel
470
See, for example, U.S. Department of Treasury, Remarks by Interim Assistant U.S. Secretary for
Financial Stability Neel Kashkari at the Brookings Institution (Jan. 8, 2009) (online at
www.financialstability.gov/latest/hp1347.html) (hereinafter “Neel Kashkari Brookings Institute Remarks”)
(“Treasury was forced to act to prevent a significant disruption of the automotive industry that would pose a
systemic risk to financial markets and negatively affect the real economy.”); Congressional Oversight Panel,
Testimony of Assistant U.S. Secretary of the Treasury for Financial Stability Herbert Allison, at 53 (June 24, 2009)
(online at cop.senate.gov/documents/testimony-062409-allison.pdf) (hereinafter “Herb Allison COP Testimony”)
(“What we‟re trying to do is to allow the automobile industry and encourage the automobile industry to restructure
so that it is again a highly-competitive sector of our economy and can grow and create more jobs over time…”); Ron
Bloom COP Testimony, supra note 36 at 34 (“[T]he administration and the prior administration believe that the
centrality of the automobile industry to the broader economy justified this intervention.”).
471
103
requested access to certain documents from Treasury in order to determine the scope of the
Treasury‟s due diligence and evaluations of Chrysler and GM‟s viability plans. The information
shared with the Panel includes Treasury‟s assessment of the viability plans submitted by
Chrysler and GM and the evaluation of the long-term economic viability of both companies as
prepared by Treasury and its financial advisors. On the basis of the information that Treasury
provided to the Panel, it appears they conducted extensive and thorough due diligence on the
viability plans, asked the companies to consider other variables, criticized the companies‟ plans,
and questioned their assumptions. The materials shared with the Panel also support Mr. Bloom‟s
statements that Treasury used its own assumptions to conduct stress tests on these plans, looked
at a variety of scenarios in order to formulate cash flow capability and the likely earnings
capacity of the companies, challenged the companies to look forward, and created models of
“potential enterprise value.”472 The scope and parameters of Treasury‟s review of these initial
viability plans seem appropriate for the role Treasury found itself in – as a potential investor of
taxpayers‟ money.
Nonetheless, while Treasury‟s diligence was detailed and thorough (and recognizing the
difficulty posed by releasing sensitive corporate information), this does not mean that Treasury
has been transparent and accountable during the process. Congress, and ultimately the American
taxpayer, have been “left in the dark”473 concerning the details of Treasury‟s review process and
its methodology and metrics at a time when Treasury committed additional TARP funds to these
companies. Treasury failed to disclose to the public both the factors and criteria it used in its
viability assessments, the scope of outside involvement in its evaluations, and its basis and
reasoning for selecting particular benchmarks. Simply, its disclosures did not go far enough.
This is especially unfortunate given Treasury‟s apparent commitment to “ensure thorough
472
Ron Bloom Senate Testimony, supra note 170 at 11-12.
473
At the July 21, 2009 House Judiciary Subcommittee on Commercial and Administration Hearing on the
Ramifications of Automotive Industry Bankruptcies, Part II, Representative Dan Maffei (D-NY) stated that “the
Congress and the American public were left in the dark as to how the task force, then led by Steven Rattner, reached
its conclusion and I think that is the underlying problem. There simply has not been very good communication
between the president‟s Task Force and Congress. The decisions were implemented without the auto manufacturers
or the task force presenting evidence publicly or even privately to Congress that some aspects of this reorganization
would actually benefit the automotive companies financially.” At the same hearing, Representative Bill Delahunt
(D-MA) also noted that “[t]here have been significant complaints about transparency” and that “everyone is entitled
to a full explanation of the rationale for decisions that are made.” Furthermore, as Senator Mike Johanns (R-NE)
noted at the June 10, 2009 Senate Banking Committee Hearing on the State of the Domestic Automobile Industry,
“Hard decisions are best made in a transparent sort of way. For Congress to wake up like the rest of the American
public on Monday and find that, over the weekend, we had bought General Motors, with all of the problems
associated with it, is really outrageous, really outrageous.” Such concerns led the House Financial Services
Committee to approve a resolution on July 17, 2009 seeking information from the Task Force regarding major
decisions made on the Chrysler and GM restructurings, including its decisions to extend bankruptcy financing to
both companies, Treasury‟s assumption of equity stakes, and decisions on debt reduction. While the House
Financial Services Committee voted unanimously to send its request to the full House of Representatives for
consideration, the full House has not yet taken action on the measure. As Ranking Member Spencer Bachus (R-AL)
stated, “It‟s not about taking sides. It‟s about acquiring information about the process. I think the American people
and Congress have questions.”
104
transparency and accountability for [its] actions.”474 Without an open process, attempts by
policymakers and the general public to objectively assess AIFP as well as New Chrysler and
New GM‟s performance and progress are substantially impeded. Even after the Panel‟s review
of documents from Treasury, some questions remain, including:
 What happens if New Chrysler and New GM fail to live to up to the Treasury auto team‟s
expectations? More specifically, if the companies do not begin to produce automobiles that will
compete in the marketplace, what is Treasury‟s role at that point as the investor of taxpayers‟
money in these enterprises?
 What is the likelihood that the private sector will lend to, or do business with, these
companies, particularly while Treasury retains an ownership interest in them? What were the
predictions that the Treasury auto team relied on?

What possible exit strategies did Treasury evaluate before making its investments?
Just as risk is an important variable to examine when making an investment, so too is the
establishment of a feasible strategy for the disposition of an ownership position. While it is part
of this Panel‟s responsibility to inquire as to how and when Treasury plans to unwind its
ownership stakes in Chrysler and GM and return the money to the taxpayers where it properly
belongs, Treasury has avoided sufficient public disclosure regarding its exit strategy for the
investment in the automobile industry.475 Officials have maintained the position that Treasury
will dispose of its ownership stake in Chrysler and General Motors “as soon as is practicable.”
However, the meaning of “practicable” has yet to be defined, and it remains unclear whether
Treasury is unwilling or simply unable to define specifically the timetable and method for ending
its ownership position in the automobile industry. The elusive nature of this issue is typified in a
recent statement by Mr. Bloom: “The definition of „practicable‟ is a bit like „pornography,‟
though; we‟ll know it when we see it.”476 While Treasury has stated its intent to sell its
ownership stakes “as soon as practicable,” Senator Lamar Alexander (R-TN), noted that Fritz
Henderson, president and chief executive officer of New GM, told Senators and Congressmen in
a telephone call on June 1, 2009 that while it is Treasury‟s decision, “this is a „very large
amount‟ of stock,” and that “orderly offering of [Treasury‟s] shares to establish a market may
have to be „managed over a period of years.”477
474
475
See Part F of Section One of this report for further discussion of factors involved in Treasury‟s exit
from its investment in the Automotive Industry, infra.
476
Nick Bunkley August 5 New York Times Report, supra note 80.
477
Congressional Record, Statement of Senator Lamar Alexander, S6152 (June 4, 2009) (hereinafter
“Senator Alexander June 4 Statements”).
105
Although the issue of Treasury‟s strategy, or lack thereof, for exiting its ownership
positions is still a concern, comments by Mr. Bloom have shed some light on the future plans for
those investments. In a remark during a question and answer segment of the Panel‟s recent
Detroit field hearing, Mr. Bloom highlighted a series of practical issues for Treasury to consider
regarding the disposition of its ownership stakes.478 He maintained, however, that the disclosure
of specific timetables and milestones regarding Treasury‟s exit strategy could ultimately
negatively affect the taxpayers‟ interests.479 First, the company‟s board determines the timing of
an IPO, not the government. Moreover, to force a company to have an IPO would be
inconsistent with Treasury‟s “hands off” approach. Second, in order to maximize the taxpayers‟
investments, Treasury expects to divest its ownership stakes at a future point when the
companies become profitable and when Treasury can take advantage of a rise in markets.480 For
Treasury to do otherwise could have a negative effect on its ability to sell into the market and
obtain maximum value – the so-called “overhang.” Since Treasury‟s plans are hardly a secret,
however, the market “overhang” concern might not appear to be so troubling, but the timing of
sale certainly remains an issue so that the value of the taxpayers‟ investment is maximized. The
Panel also recognizes, however, that there are other critical factors involved in the proper
formulation and timing of an exit strategy. Private sector interest and involvement are essential
elements of a successful Treasury exit strategy.481 In order for this success to be achieved, the
private sector must also be interested in doing business with these companies and demonstrate
interest in owning these companies, even while Treasury retains an ownership interest. Although
Mr. Bloom‟s points seem fundamentally reasonable and prudent, the Panel is concerned that the
only viable metrics that Treasury will provide regarding its investments in Chrysler and GM will
be provided in initial quarterly reports that will (at least until the companies become public) not
be as comprehensive as filings required by the SEC. Without the release of additional specific
milestones or markers on each company‟s path towards an IPO, the likelihood that taxpayers will
be able to assess the chances of seeing the return of their money is slim, at best.
The Panel is also mindful of particular shortcomings in transparency with respect to the
Administration‟s negotiations with the companies and various stakeholders in the bankruptcy
process. Although such justification is legally irrelevant,482 at least one of the companies –
Chrysler – has defended its decision to enter into agreement with the UAW Trust on the grounds
478
See Part F of Section One of this report for further discussion of factors involved in Treasury‟s exit from
its investment in the automotive industry, infra.
479
Ron Bloom Prepared COP Testimony, supra note 79 at 3, stating that “[t]he judgment was made that to
put out a more specific timeline would create an overhang in the market that would be deleterious to receiving the
best price.”
480
481
Ron Bloom Senate Testimony, supra note 170.
482
See discussion of this issue supra Section E(1)(b).
106
that to continue as a going concern and return to profitability, it would need workers.483 Without
the UAW‟s support for the sales, the belief has been, there would be insufficient workers for the
plants. The majority of the industries manufacturing operations are in Michigan,484 a state whose
unemployment rate stood at more than 15 percent as of June 2009, the highest of any state in the
country.485 The Treasury auto team has explained to the Panel that maintaining a stable preexisting and experienced workforce was paramount in light of the difficulty of individually
hiring and training many thousands of workers.
In its assessment of government actions to deal with the current financial crisis, the Panel
has regularly called for transparency, accountability, and clarity of goals. Treasury must commit
itself to those same principles when implementing TARP projects and administering the AIFP.
Undoubtedly, the guidelines for the AIFP are expansive in order to maximize Treasury‟s
potential options and facilitate rapid intervention in the midst of economic uncertainty.
Treasury, therefore, maintains the authority to determine its involvement in stabilizing
companies on a case-by-case basis and “may invest in any financial instrument, including debt,
equity, or warrants, that the Secretary of the Treasury determines to be a troubled asset.”486 In
both the AIFP and the Capital Purchase Program (CPP), Treasury has utilized all available
financial instruments in order to stabilize the respective industries as it saw necessary. With such
expansive discretion, the Panel believes it is imperative for Treasury to disclose its methodology
and rationale since any use of taxpayer funds warrants comprehensive justification.
6. Has the Can Been Kicked Down the Road?
The day GM filed for bankruptcy protection, President Obama told the American people
that he refused “to let these companies become permanent wards of the state, kept afloat on an
endless supply of taxpayer money.” “In other words,” President Obama said, “I refuse to kick
the can down the road.”487 The government-orchestrated bankruptcies of Chrysler and GM did
not resolve the complex underlying problems facing the domestic automotive industry in the
United States. It is therefore unclear whether the new entities will be able to overcome the
historical shortcomings that led to their predecessors‟ failure. If they are unable to do so, either
483
484
GM U.S. Facilities (online at
www.gmdynamic.com/company/gmability/environment/plants/facility_db/facilities/list); Chrysler‟s U.S. Parts and
Assembly Plants, USA Today (Apr. 30, 2009) (online at www.usatoday.com/money/autos/2009-04-30-chryslerplants-map_N.htm). At the Panel‟s Detroit field hearing held on July 27, 2009, Representative Carolyn C.
Kilpatrick (D-MI) noted: “Here in Michigan, we are the epicenter of the manufacturing that is kind of eroding itself
in America.” Congressional Oversight Panel, Statement of Rep. Carolyn C. Kilpatrick, at 7 (July 27, 2009).
485
Bureau of Labor Statistics, Local Area Unemployment Statistics (online at www.bls.gov/lau/home.htm).
486
U.S. Department of the Treasury, Guidelines for Automotive Industry Financing Program (accessed
Aug. 31, 2009) (online at www.financialstability.gov/docs/AIFP/AIFP_guidelines.pdf).
487
107
the government will need to step in again, or the companies will need to liquidate, with much of
the attendant misery that the government sought to avoid in 2008 and 2009.
The factors that led to the insolvency of Chrysler and GM were no secret.488 The
overcapacity of the global automotive manufacturing industry and the fierce competition it
creates has plagued American automotive manufacturers for decades.489 In addition, the
healthcare and pension obligations of large corporations in the United States have created costs
that put American automotive manufacturers at a disadvantage compared to foreign
competitors.490 These factors, coupled with the drastic decline in demand for new cars and
trucks in the United States in 2008 and 2009, made the financial condition of Chrysler and GM
untenable.491
In deciding to rescue these firms with taxpayer money, the Panel would expect the
Treasury auto team to analyze several key considerations in the normal course of performing its
due diligence as a prospective investor:
1. Revenue forecasts and market share. The viability of these companies is still dependent
on sales volume, which, as a result of the global economic downturn, remains at
historically low levels.492 The projections provided by GM in SEC filings assumed New
GM would maintain a market share ranging between 17.5 percent and 18.5 percent
between 2009 and 2014, while the number of cars sold in the United States was projected
to climb steadily from 10.5 million to 16.8 million during that period.493 With these
numbers, New GM projected that it could maintain a positive cash flow, the definition of
viability used by the Treasury auto team.494 But GM has been steadily losing market
share for decades and it is unclear whether the projections provided adequately reflect
this trend. Some analysts believe that New GM could see its market share decline to
between 15 percent and 16 percent over the next several years.495
488
Fortune magazine ran a cover story predicting the General Motors bankruptcy in 2006. Carol Loomis,
The Tragedy of General Motors, Fortune (February 6, 2006) (online at
money.cnn.com/magazines/fortune/fortune_archive/2006/02/20/8369111/index.htm).
489
The annual reports of the major public auto manufacturers repeatedly reference the overcapacity in the
North American market as one of their most significant challenges. See, for example, General Motors, Form 10-K,
I-17 (March 28, 2006) (hereinafter “GM Fiscal Year 2005 10-K”); Ford Motor Company, Form 10-K, 3 (March 1,
2006) (hereinafter “Ford Fiscal Year 2005 10-K”).
490
Affidavit of Frederick A. Henderson Pursuant to Local Bankruptcy Rule 1007-2, 5-6 (June 1, 2009), In
Re General Motors Corp., (09-50026) (hereinafter “Frederick Henderson GM Bankruptcy Affidavit”).
491
Id; Ronald Kolka Declaration, supra note 113 at 4-5.
492
GM July 16, 2009 8-K, at 20-21, supra note 86.
493
Stephen Worth Declaration, supra note 36 at appendix. 18.
494
495
Merrill Lynch, Car Wars 2010-2013 (July 15, 2009).
108
Moreover, declining confidence in Chrysler and GM vehicles, as a result of their
financial difficulties, creates a challenge to new sales that must be overcome if either new
company is to survive.496 Market share in the North American market has historically
been driven by the number of new products auto manufacturers bring to market.497 While
reducing capacity reduces fixed costs, it also reduces the number of new cars and trucks
New Chrysler and New GM can bring to market in the short term, which is likely to have
a negative effect on the market share of these companies. As market share declines, these
companies will need to earn more profit per vehicle to maintain projected revenues.
2. Cost controls. There is no question that New Chrysler and New GM are better positioned
companies than their pre-bankruptcy counterparts. Both have shed billions of dollars in
debt and other liabilities, improving their ability to make profits and invest in new
products and technology.498 Both companies have renegotiated their agreements with the
UAW, reducing labor costs dramatically. The closing of manufacturing plants and the
shedding of unprofitable brands has somewhat reduced overcapacity. In addition, both
companies are still hoping to achieve various post-bankruptcy cost reductions.499
Achieving these reductions may prove to be critical to the ability of the new companies to
fully realize their viability plans.500 The cost reductions made to date were necessary for
the viability of the new companies but it is unclear whether they will prove to be
sufficient.
3. External shocks to revenue and cost projections. Viability plans for auto makers should
be tested for the potential impact of sudden shocks to revenue and cost projections. The
most obvious, but by no means only, sources of such shocks for the automotive industry
are: (1) a sharp economic downturn – or, under current circumstances, another economic
contraction before any recovery has a chance to take hold; (2) a surge in oil prices, most
likely tied to a supply interruption; and (3) a sharp change in regulatory requirements,
particularly environmental controls or fuel efficiency standards. Energy price trends
would appear to be particularly critical for the prospects of the automotive industry; if
they continue to fluctuate to the extent they have over the last five years, it may be
difficult, if not impossible, for auto manufacturers to invest profitably in bringing energy
efficient cars to market. In the case of New Chrysler, its alliance with Fiat was
496
Id. at 21.
497
Id.
498
See Moody‟s Auto Navigator (July 15, 2009) (describing the reduction of General Motors debt from $43
billion to $26 billion).
499
Id.
500
Id.
109
predicated on Fiat‟s providing technology to produce fuel efficient vehicles in the
American market.501
The Panel requested access to certain documents from Treasury in order to determine the
extent to which the Treasury auto team conducted due diligence. The information shared with
the Panel involves the auto team‟s assessment of the viability plans submitted by Chrysler and
GM and the evaluation of the long term economic viability of both companies by the Treasury
auto team and its advisors. On the basis of the information that Treasury has provided to the
Panel, it appears that the auto team conducted due diligence as a private investor would and were
fully informed when making its investment decisions. The auto team seems to have had a
reasonable basis to believe in the long term viability of the two companies. This does not
necessarily mean that the investment decision will prove to be a profitable one; the automotive
sector in the United States is risky and these companies have a legacy of failure. Additionally,
while Treasury followed the process that a private investor would follow, that does not mean its
objectives were those of a private investor. A private investor seeks to establish it is receiving a
reasonable rate of return on its investment through the due diligence process. As discussed
above, there are significant obstacles to the two companies‟ ever achieving the level of
profitability that would permit the return of all the taxpayer funds expended, and Treasury‟s best
estimates are that some significant portion of those funds will never be recovered.502 Treasury
may not, however, have been seeking to maximize profits.503
A significant portion of the American automotive industry had failed by December 2008.
Treasury, using TARP funds, effectively granted a reprieve to a large part of that sector.
Treasury has taken significant and far-reaching actions that are intended to permit New Chrysler
and New GM to function on their own without any further government assistance.504 The specter
of future government bailouts has gone. The possibility of failure (and the loss of taxpayer
money), however, remains until these two companies can show that they are producing cars
people want to buy.
H. Conclusion and Recommendations
The Panel will continue to monitor Treasury‟s use of TARP funds in its assistance to the
automotive industry. In particular, the Panel will focus its attention on the issues described
below.
1. Treasury’s Role in Protecting Taxpayer Investment
501
502
See discussion of this issue supra Section F(1).
503
Ron Bloom‟s comments to Panel staff, supra note 274.
504
110
Treasury‟s performance in protecting the interests of the taxpayers in the support of the
auto companies is somewhat mixed. On one hand, Treasury negotiated aggressively in these
transactions, demanding significant concessions from other stakeholders, and protecting taxpayer
interests as if it were a private investor. On the other hand, the decisions to enter into the
transactions in the first place suffer from a lack of transparency.
Treasury was instructed to act in a “commercial manner” by the White House,505 and
there can be no doubt that Treasury robustly defended its interests (and thus those of taxpayers)
like any other stakeholder. There is also no doubt that the other parties involved were
sophisticated and well-represented, and more than equal to intense negotiations. Some feel that
the government was too tough,506 or too tough with the wrong parties. Others wish the
government had been equally tough in negotiating the investment of TARP funds in banks. The
assertiveness displayed by the government in the reorganizations reduces the “moral hazard”
implicit in using public money as a funding option for failing businesses.
It appears that Treasury to some degree acted as a private investor would in making the
decision to support the automotive companies in the first place. However, the lack of
transparency, as discussed in detail above,507 also makes it difficult to determine the priorities of
505
Ron Bloom Prepared COP Testimony, supra note 78; Ramifications of Automotive Industry
Bankruptcies, Part II, supra note 10 at 1.
506
The negotiations gave rise to allegations of threats and bullying. Some of the more extreme alleged
threats have been impossible to prove, and have been vigorously denied by Treasury. Specifically, Thomas Lauria,
a bankruptcy attorney with White & Case maintains Mr. Rattner threatened an official of Perella Weinberg Partners,
an investment bank, that the White House press corps would smear Perella‟s reputation if they did not support the
Administration‟s plan on the Chrysler bankruptcy. Joseph A. Giannone, Perella Denies White House Threat Over
Chrysler, Reuters (May 4, 2009) (online at www.reuters.com/article/idUSN0441888520090504). Bloom, in his
appearance before the Panel, denied this allegation. Ron Bloom Prepared COP Testimony, supra note 78. Because
dealing with the U.S. government is not the same as dealing with other credit bidders or DIP finance providers, and
when the government accuses a bondholder, who may be under a fiduciary obligation to get the best price for its
bonds, and in any case has the right to protect its own interests the best way it can, of failing to assume some correct
proportion of “shared sacrifice,” some may feel that a line has been crossed. It would be hypocritical for Treasury to
have its agents act in a commercial manner, protecting their own interests, without expecting its counterparties to do
the same. However “commercial” Treasury‟s objectives, the U.S. government has a throw weight that its
counterparties cannot match as there is little in the regular commercial arsenal that can counter a charge of
“unpatriotic” behavior by the President of the United States. The Panel staff contacted many of the parties involved
in these transactions to substantiate the allegations of threats and bullying, however none of the Panel‟s inquiries
received a response. Zach Lowe, White & Case's Tom Lauria Reflects on Non-TARP Lenders Crazy Chrysler Week,
The AmLaw Daily, (May 11, 2009) (online at amlawdaily.typepad.com/amlawdaily/2009/05/nontarp.html)
(hereinafter “Thomas Lauria Statements”); Preliminary Objection of the Chrysler Non-Tarp Lenders to Motion of
Debtors in Possession, Pursuant to Sections 105, 363 and 365 of the Bankruptcy Code and Bankruptcy Rules 2002,
6004 and 6006, For (I) An Order (A) Approving Bidding Procedures and Bidder Protections for the Sale of
Substantially All of the Debtors‟ Operating Assets (B) Scheduling a Final Sale Hearing and (C) Approving the Form
and Manner of Notice Thereof; and (II) An Order (A) Authorizing the Sale of Substantially All of the Debtors‟
Operating Assets, Free and Clear of Liens, Claims, Interests and Encumbrances, (B) Authorizing the Assumption
and Assignment of Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related
Procedures and (C) Granting Related Relief, In Re Chrysler LLC, S.D.N.Y. (No.09 B 50002 (AJG)) (online at
chap11.epiqsystems.com/docket/docketlist.aspx?pk=1c8f7215-f675-41bf-a79b-e1b2cb9c18f0&l=1).
507
See supra Section G5.
111
Treasury‟s primary objectives, including which competing policy considerations, if any,
informed its actions. Based on Treasury‟s presentation to the Panel, the due diligence performed
with respect to the ultimate viability of the automotive companies was extensive and thorough,
and consistent with what a private investor would have done in the protection of its own
interests. The ultimate decision to invest in the automotive companies, however, could have
been made on policy grounds, regardless of their profitability, which would change the metrics
for success. In the absence of a clear consensus of Treasury‟s objectives, it is difficult to assess
their success.
2. Treasury’s Role as Owner of Significant Stakes in Automotive companies
The tension between government intervention in the automotive companies and the
hands-off approach that the government intends to take with respect to its ownership stake is
examined above.508 The Panel recommends that Treasury acknowledge the inherent conflicts
that arise from its multiple roles and address the following issues:

Treasury should clarify its policy objectives, reasonable expectations, and the
implications of these policy decisions in the automotive bailouts. If Treasury‟s objectives
include more than the rescue of Chrysler and GM but also other aims, such as
environmental improvement, support for pension obligations, or continued employment,
Treasury should make this clear, and also provide transparency on the costs of such
objectives. Given the tension inherent in the government‟s overlapping roles and the
fiduciary responsibility it has assumed in its disbursement of TARP funds, the Panel
believes it is necessary for Treasury to provide more information regarding its decisionmaking and administration of the AIFP. The Panel is particularly concerned with the
lack of publicly disclosed information regarding Treasury‟s evaluation of the viability of
the automotive companies and its exit strategy with respect to the substantial investments
it has made in those companies in order to ensure that “these companies – and this
industry – must ultimately stand on their own, not as wards of the state.”509

Treasury must provide more detail about Treasury‟s corporate governance policies with
respect to the automotive companies,510 including how the government will deal with
conflicts of interest between its role as an equity holder or creditor and as regulator. In
addition, Treasury should establish policies prohibiting Treasury employees from
accepting employment with either company for a period of at least one year following the
termination of their employment at Treasury.
508
See supra Section G.2.
509
510
See supra Section G.2.a.
112

Treasury should consider the unparalleled opportunity it has been handed to set an
example of corporate governance best practices in the companies in which it is now a
major investor. Changes in corporate governance have begun with the appointment of
well-qualified and independentdirectors.511 Rules governing matters such as
independence of directors, their service on other boards, term limits, stock ownership
requirements and retirement should all reflect best efforts on corporate governance
excellence. As TARP recipients, the automotive companies are already subject to
restrictions on executive compensation, but they could adopt their own more tailored
compensation guidelines, and ensure that compensation for both executives and board
members are based on clearly articulated performance criteria and aligned to long-term
performance. Because accurate financial reporting to the taxpayers is both essential and
likely to be challenging in light of the reorganization of the two companies, special
attention should be paid to the audit committees, possibly having all of their members
being required to be “financial experts.”512 Equally important, internal controls that
affect inputs into financial statements should conform to best practices. Particular
attention should be paid to efforts to enhance shareholders‟ participation in corporate
governance.513 The Panel recommends that the automotive companies‟ bylaws and
policies provide for full disclosure of all dealings with its significant shareholders
(including, of course, the government).514

With respect to disclosure of the performance of the automotive companies, Treasury has
indicated that the two new companies will file periodic reports with the SEC.515 These
reports will, in essence, determine how the ultimate shareholders (the taxpayers) will
share in the success of the auto bailout and the stewardship of their money. It is therefore
essential that these reports be provided on a timely basis, and be as complete as possible.
The Panel recommends that the companies produce reports to the standard and in
compliance with the timing that applies to SEC reporting companies,516 and that they do
so as soon as possible. In particular, the Panel recommends that these reports include a
“management‟s discussion and analysis,” as SEC-reporting companies are required to do,
which identifies known “trends and uncertainties” with respect to the company‟s
511
Supra notes 181-183 and accompanying text. See discussion of this issue supra Section B.
512
The Sarbanes-Oxley Law requires only one such expert. 15 U.S.C. § 7265(a).
513
This would only be possible within the government‟s corporate governance guidelines if the shares were
held in a trust, as suggested below.
514
The Panel recommends that the CEO and chairman of each company certify each quarter as to the
absence of government direction or intervention in their day-to-day business, or the nature of such direction or
intervention.
515
516
Exhibits required in such filings would include material contracts; the Panel assumes “material” would
involve any transactions with the government.
113
financial performance and outlook. In the case of the automotive companies, in addition
to discussing the issues outlined above,517 these reports should include measurement of
the companies‟ progress against the viability plans on the basis of which the government
invested taxpayers‟ money. The discussion should also disclose any divergence of
performance from the assumptions on which the viability plans were based.

The Panel recommends that Treasury consider holding its interests in the automotive
companies through a trust managed by an independent trustee.518 This would have
several advantages. First, it would send a clear message to the markets that the
government was not interfering (and could not interfere) in private commerce. Second,
decisions as to voting, holding, or the timing and volume of sales of government holdings
could be made by an independent entity, in the best interests of the taxpayer, free of
interference by any branch of government and not swayed by political expediency.
Third, without a trust, the taxpayers‟ interest in the companies will be silenced, leaving
disproportionate power in the hands of the minority shareholders.519 Fourth, creating a
trust with timeframes could provide taxpayers with confidence that they will not still
retain large ownership stakes in these companies five, ten or twenty years down the road.

As discussed above, there are serious policy implications in the government ownership of
commercial entities. President Obama has stated that he doesn‟t think taxpayer subsidies
to the automakers should continue indefinitely.520 The Panel urges that divestment take
place as soon as commercially reasonable. Divestment need not mean outright sale,
however. The determination of what is “commercially reasonable” might be improved if
the equity in the automotive companies were placed in a trust managed by an independent
trustee, as discussed above, thus taking political considerations out of the equation, and
permitting independent analysis of the timing of sale.
3. Compliance with Bankruptcy Code
Turning to Treasury‟s conduct in the bankruptcy proceedings, it appears that accusations
of “illegal” behavior521 are overblown and that allegations that statutory bankruptcy law
priorities were overturned522 are not accurate. The courts found that Section 363 sales occurred
in accordance with the Code, and that no statutory priorities were overturned. Dissenting
creditors may have been disappointed with what they received in the Chrysler bankruptcy, and
517
See discussion of this issue supra section G.3.
518
See discussion of this issue supra text accompanying note 212.
519
This point is particularly applicable to GM because of the large proportion of shares held by taxpayers.
520
White House Office of Press Secretary, News Conference by the President (Apr. 29, 2009) (online at
www.whitehouse.gov/the_press_office/News-Conference-by-the-President-4/29/2009/).
521
Thomas Lauria Statements, supra note 506.
522
Thomas Lauria Statements, supra note 506.
114
they may feel that unsecured creditors, such as the UAW Trust, received more generous terms,
but nothing in bankruptcy law takes away the leverage of those with whom the bankrupt
company must do business going forward. The UAW agreed to substantial changes in its
contracts that would improve the profitability of the automotive companies in return for the
companies‟ continued support of the health benefit plans of their retirees and an ownership stake
in New Chrysler. The secured creditors made no similar concessions. Thus, New Chrysler, a
totally new entity that purchased the assets of Old Chrysler, was able to bargain directly with the
UAW in the same way that any company can bargain, without any restraints imposed by
bankruptcy laws. To mandate a different result would risk undermining the certainty of the
bankruptcy and contract laws on which commerce in the United States relies.523
To the extent that Congress objects to the use of Section 363 in Chapter 11
reorganizations or the results that such use can produce, legislative fixes, including that
suggested by Professor Adler, are available.524
4. Treasury’s Authority
With respect to the question of authority, the authority of Treasury to use TARP for
support of the automotive companies seems unclear. It is clear that at one point, neither
President Bush nor Secretary Paulson believed TARP was available for this purpose and there is
a strong suggestion in the Congressional Record that many in Congress also believed that EESA
was a statute aimed specifically at the financial sector. Given the lack of serious opposition from
Congress on the current approach or any party with standing to challenge it, however, it is
unlikely that there will be any definitive finding on the constitutionality of this use. These issues
are thus unlikely to affect future administration of the program. The Panel recommends that
Treasury provide a legal opinion justifying the use of TARP funds for the automotive bailouts.
523
The fact that a different result would likely undermine commercial markets is ironic in light of the
criticisms that some have leveled that the failure to follow these well-established rules would upset commercial
markets.
524
What‟s Good for General Motors, supra note 258.
115
ANNEX A: “WHAT’S GOOD FOR GENERAL MOTORS”
116
Draft: 9/1/2009
What’s Good for General Motors
Barry E. Adler *
The recent bankruptcy cases of Chrysler and General Motors were successful in that
they quickly removed assets from the burden of unmanageable debt, but the price of this
achievement was unnecessarily high because the cases established a precedent for the disregard of creditor rights. As a result, the automaker bankruptcies may usher in a period
where the specter of insolvency will increase the cost of capital in an economy where affordable credit is sorely needed.
After brief analysis of the Chrysler and GM cases, below, and a brief description of
potentially negative consequences, I describe how bankruptcy courts might disadvantageously extend these precedents and I offer a proposal for an amendment to the Bankruptcy Code to curb potential excesses. The proposal is designed to ensure that future
bankruptcy courts honor the entitlement for which creditors contract and without which
one cannot expect them to lend on favorable terms.
I.
The Chrysler Bankruptcy
The rapid disposition of Chrysler in Chapter 11 was formally structured as a sale under §363 of the Bankruptcy Code. 1 While that provision does, under some conditions,
permit the sale of a debtor’s assets, free and clear of any interest in them, the sale in
Chrysler was irregular and inconsistent with the principles that undergird the Code.
The most notable irregularity of the Chrysler sale was that the assets were not sold
free and clear, but rather the purchaser, “New Chrysler”—an affiliation of Fiat, the U.S.
and Canadian governments, and the United Auto Workers (“UAW”)—took the assets
subject to specified liabilities and interests. More specifically, New Chrysler assumed
about $4.5 billion of Chrysler’s obligations to, and distributed 55% of its equity to, the
UAW’s voluntary beneficiary employee association (“VEBA”) in satisfaction, perhaps
full satisfaction, of old Chrysler’s approximately $10 billion unsecured obligation to the
VEBA (which is a retired workers benefit fund). 2 So long as New Chrysler remains sol*
Petrie Professor of Law and Business, New York University. This article is based on testimony given
before the Congressional Oversight Panel’s July 27, 2009 hearing on assistance to the automobile industry under the Troubled Asset Relief Program. I thank Steve Choi, Marcel Kahan, Troy McKenzie,
and Mark Roe for conversation that was valuable in the preparation of that testimony and this article.
The article’s title comes from a famous, or infamous, quote by Charles Erwin Wilson, General Motors
president and later Secretary of Defense, who testified in 1953 before the Senate Armed Services Committee that “for years I thought that what was good for the country was good for General Motors and
vice versa.”
1
The Bankruptcy Code appears in Title 11 of the United States Code.
2
Although there is a distinction, legal as well as practical, between the UAW and its VEBA fund for
retired union workers, for simplicity of exposition, such distinction is generally ignored in this article,
Barry E. Adler
Draft: 9/1/2009
vent, this means that at least half of its obligation to the VEBA will be paid. This, while
Chrysler’s secured creditors are to receive only $2 billion in satisfaction of about $7 billion in claims, about 30 cents on the dollar. That is, money that might have been available
to repay these secured creditors was withheld by the purchaser to satisfy unsecured obligations owed the UAW. Thus, the sale of Chrysler’s assets was not merely a sale, but also
a distribution—one might call it a diversion—of the sale proceeds seemingly inconsistent
with contractual priority among the creditors.
To be sure, the situation is more complicated than may first appear. The purchaser in
this case was funded primarily by the U.S. government, which had previously advanced
$4 billion in funds from the Troubled Asset Relief Program (“TARP”) and, along with
the Canadian government, agreed to loan the new enterprise billions more. The government had political reasons to assure continuation of auto production and toward that end
may have been willing to pay more for the assets than they were worth. For purposes of
bankruptcy law, then, the question is not whether the government paid the UAW (or
holders of other assumed obligations) too much, but whether the process deprived the secured creditors of a return to which the law entitles them. Some of these creditors, albeit a
minority, objected to the sale because they believed they should have received more and
would have but for the orchestration of the sale by the U.S. Treasury and automotive task
force.
Proponents of the Chrysler sale argue that the sale was proper despite the protests.
They contend that the secured creditors who objected to the sale were a minority of such
creditors and as a minority lacked standing to complain, a point to which I return below.
More fundamentally to the bankruptcy analysis, the proponents of the transaction insist
that the company’s assets would have been worth little in liquidation and so the secured
creditors should have been satisfied with the return the bankruptcy sale provided them.
But there was no market test of this proposition because Judge Gonzalez, who presided
over the Chrysler case, permitted only days for a competitive bid to challenge the proposed sale and restricted bids to those that were willing to have the bidder assume specified liabilities, including Chrysler’s obligation to the VEBA. 3 (There was an exception to
this restriction for specially approved bids, but by the court’s order, the UAW had to be
consulted before a noncompliant bid would be approved.)
Given the constraint on bids, it is conceivable that the liquidation value of Chrysler’s
assets exceeded the company’s going-concern value but that no liquidation bidder came
forward because the assumed liabilities—combined with the government’s determination
to have the company stay in business—made a challenge to the favored sale unprofitable,
which sometimes treats as interchangeable payments to the UAW on account of its claims in bankruptcy and transfers to the VEBA.
3
The bankruptcy court opinion in Chrysler appears at 405 B.R. 84 (Bankr. S.D.N.Y. 2009). This opinion has now been affirmed, 2009 WL 2382766 (2nd Cir.).
.
2
Barry E. Adler
Draft: 9/1/2009
particularly in the short time frame afforded. It is also possible that, but for the restrictions, there might have been a higher bid for the company as a going concern, perhaps in
anticipation of striking a better deal with workers. 4 Thus, the approved sale may not have
fetched the best price for the Chrysler assets. That is, the diversion of sales proceeds to
the assumed liabilities may have been greater than the government’s subsidy of the transaction, if any, in which case the secured creditors would have suffered a loss of priority
for their claims. There is nothing in the Bankruptcy Code that allows a sale for less than
fair value simply because the circumstances benefit a favored group of creditors.
Against this criticism, the sale is defended on the ground that quick action was required to preserve the company’s going concern value, but it is not certain that this was
so or that the company’s going concern value exceeded its liquidation value. Moreover,
restrictions placed on the bidding process do not appear to be sensible even given a time
constraint. The sale served the government’s desire to assure continuation of the company and to protect the union’s interest, but it is not apparent that the sale was designed to
maximize the return to the bankruptcy estate and there seems no legitimate reason to have
restricted bids based on the bidders’ willingness to assume favored liabilities. The approved sale, therefore, ran afoul of the Supreme Court’s admonition, in an analogous
case, North LaSalle Street, that a court should not settle a valuation dispute among parties
with a determination “untested by competitive choice.” 5
Viewed another way, the approved transaction was not a sale at all, but a disguised
reorganization plan, complete with distribution to preferred creditors. In this light, the
secured creditors who objected to the sale and distribution did not necessarily have a
complaint with the amount paid (by the government) for the assets. Indeed the objecting
creditors may well concede that the amount paid to the UAW was quite high; they objected to the distribution, which favored others at their expense. That is, the objection was
to the fact that the approved transaction—a de facto reorganization plan—illegitimately
distributed assets inconsistently with the priorities established under the Bankruptcy
Code. 6
4
Note that these restrictions would have prevented credit bidding even if the secured bondholders had
collectively desired to make such a bid because the required assumption of liabilities effectively eliminated the secured lender priority that is necessary for a credit bid.
5
Bank of America v. 203 North LaSalle Street Partnership, 526 US 434, 458 (1999). In North LaSalle
Street, the prebankruptcy shareholders of an insolvent debtor in bankruptcy offered to pay for a continuing equity interest in the reorganized entity. When a creditor protested, the shareholders asked the
bankruptcy court to affirm the exchange over the objection. The Supreme Court ruled that even if the
bankruptcy judge believed the price offered to be a fair, the court lacked the authority to approve the
transaction absent a market test of the price. The Bankruptcy Code provisions in the case were not entirely the same as those at issue in the Chrysler, or General Motors, case, but the principle applies
equally well.
6
As well summarized by Mark J. Roe and David Skeel, Assessing the Chrysler Bankruptcy (working
paper, July 27, 2009), many bankruptcy courts have determined that a de facto reorganization plan is
3
Barry E. Adler
Draft: 9/1/2009
Analysis turns next, then, to whether the objecting secured creditors could have
blocked the transaction had the distributions in the case been subject to the rules prescribed by Chapter 11 rather than as part of a §363 sale. 7 One who would defend the approved transaction would say “no,” relying again on the contention that the liquidation
value of Chrysler was so small that the secured creditors received at least their due from
the sale, an amount that the judge deemed satisfactory. What this argument overlooks,
however, is that Chapter 11 contains rules designed precisely to protect creditors from a
judicial determination with which the creditors disagree. When Judge Gonzalez approved
the Chrysler sale, he stripped these protections from the secured creditors.
More specifically, the Chapter 11 rules that shield creditors from judicial error are
called “fair and equitable” and “no unfair discrimination” provisions, which appear in
§1129(b) of the Code and govern the confirmation of reorganization plans. The requirement that a reorganization plan be fair and equitable means that if a class of claims objects to the distribution under the plan, the plan may not be confirmed if the objecting
class is not paid in full while a lower-priority class receives anything under the plan. The
requirement that a plan not discriminate unfairly means that if a class of claims objects to
the distribution under the plan, the plan may not be confirmed if a class of equal priority
receives a higher rateable return under the plan. When applicable, these provisions prevent confirmation even if a judge is convinced that the claims in the dissenting class are
receiving at least what they would receive in liquidation. Whether the dissenting class
believes that the judge is mistaken as to the true liquidation value of the firm or merely
demands its share of what it believes to be a firm’s going concern surplus over liquidation value, the class can decide for itself whether to accept the plan.
In Chrysler, the dissenting secured creditors attempted to invoke the protection
against unfair discrimination. Whatever the judge might deem to be the liquidation value
of their collateral, §506 of the Bankruptcy Code bifurcates an undersecured claim—a
claim that exceeds the value of its collateral—into a secured portion and an unsecured
improper. See also, Scott D. Cousins, Chapter 11 Asset Sales, 27 Del. J. Corp. L. 835 (2002). For an
example of a recent decision, see In re Iridium Operating LLC, 478 F.3d 452 (2d Cir. 2007).
Although the emphasis in this article is on the distribution of value among creditors rather on the propriety of a sale in the first instance, the case law does address the latter. Under the law, the proponents
of an all or almost all asset sale must demonstrate a business reason to hold a sale rather than reorganize the debtor in the traditional way, with assets in place. This was true, for example, in the Chrysler
case itself, where the bankruptcy court (as well as the court of appeals) was satisfied that there was a
valid business reason for the §363 sale. In this article, which critiques the Chrysler and GM bankruptcy
cases, I don’t question whether the business justification requirement was satisfied in the cases I examine simply because I think that the requirement is ill-advised. In my view, an unconditional auction designed to achieve the highest return for the bankruptcy estate should always be permitted; I would not
interpose the vague obstruction of business justification. My concern with the Chrysler case, and the
GM case, described below, is that there was no such auction.
7
For a similar analysis, which reaches many, though not all, of the same conclusions, see Roe & Skeel,
id.
4
Barry E. Adler
Draft: 9/1/2009
portion. The secured portion is equal to the judicially determined value of the collateral;
the unsecured portion is equal to the deficiency claim. The secured creditor objectors to
the Chrysler sale based a legal challenge on the treatment of their deficiency claims. A
deficiency claim, like the UAW claims, is a general unsecured obligation and these
claims have the same priority. Yet while the sale and distribution approved in Chrysler
paid the deficiency claims nothing, it paid the UAW claims with billions of dollars. This,
the objectors argued, is an unfair discrimination that would have rendered unconfirmable
a formal reorganization plan and should have rendered illegitimate what they saw as a de
facto reorganization embodied in the sale and distribution.
There is merit in the dissenters’ argument. To be sure, proponents of the pro-UAW
distribution can argue that the right to veto a plan on the basis of unfair discrimination is
a class-based right—not available to individual dissenters within an accepting class of
claims—and that a large majority of the secured creditors accepted the distribution. 8 But
the accepting secured creditors were largely recipients of government TARP funds and
thus arguably beholden to the government, which engineered the distribution to the
UAW. Therefore, under §1122 of the Bankruptcy Code and relevant precedent, in a formal reorganization, the judge might have been obliged to classify the TARP lenders separately from the non-TARP creditors, thereby giving the dissenters control over their own
class and, perhaps, the right to veto the UAW distribution as unfairly discriminatory.
Against this unfair discrimination contention, plan proponents can argue further that the
payment to the VEBA not as a distribution on account of an unsecured claim at all, but
rather as prospective expense that assured the company a needed supply of UAW workers, with the union thus portrayed as a critical vendor of labor. However, even if one assumed that the automaker’s value was greater as a going concern than in liquidation, one
wonders whether so large a transfer to its labor force would have been necessary in this
depressed economy. In any case, because the court characterized the transfer of assets
from Chrysler to New Chrysler as a sale rather than as reorganization, it didn’t need to
reach the classification issue or the critical vendor issue. Consequently, this characterization improperly denied the dissenters the chance at the full protections of the Bankruptcy
Code.
The foregoing assumes that the dissenting secured creditors had standing to object to
the proposed, and ultimately approved, sale of Chrysler’s assets. As noted above, proponents of the sale argued that the dissenters, as a minority of the secured creditors, lacked
such standing. The proponents pointed to a provision of the secured creditors’ loan
agreement that arguably granted an agent of the creditors the right to sell their collateral
on behalf of the group. According to this argument, because the creditors’ agent was
obliged to represent the secured creditor majority that favored the sale, the agent properly
consented to the transaction on behalf of all secured creditors. Judge Gonzalez agreed and
approved the sale, despite the lack of a true auction, in part because, in his opinion, given
8
Section 1126 of the Bankruptcy Code provides that a class of claims accepts a plan if a majority of
claim holders, holding at least two-thirds of claims by amount, accepts the plan.
5
Barry E. Adler
Draft: 9/1/2009
the agent’s consent, there was no objection. The judge rejected the dissenters’ claim,
among others, that the influence of the TARP lenders among the secured creditors tainted
the agent’s authority.
Whether Judge Gonzalez was correct to rule that the secured creditor dissenters
should be deemed to have consented to the sale of their collateral is a matter of state contract law rather than bankruptcy law. But even if the judge correctly interpreted state law,
Chrysler remains an unsettling bankruptcy precedent because approval of a sale of assets
under §363 is not limited to a case where the affected parties consent. Some courts permit
a sale free and clear of liens despite the objection of a secured creditor who will not be
fully repaid by the proceeds. 9 Moreover, a §363 sale of a debtor’s assets may occur over
the objection of an unsecured class of claims, one that disputes the efficacy of a sale because the creditors believe they would, despite their lack of priority, receive a better distribution if the sale is disallowed. Thus, given the holding in Chrysler, if a sale of a firm’s
assets is to occur without a market test, there remains the opportunity for courts to approve a de facto reorganization plan that fails to protect creditor entitlements even over
the objection of the disadvantaged creditors.
There are at least two negative consequences from the disregard of creditor rights.
First, at the time of the deviation from contractual entitlement, there is an inequitable distribution of assets. Take the Chrysler case itself, where the approved transaction welltreated the retirement funds of the UAW. If such treatment deprived the secured creditors
of their due, one might well wonder why the UAW funds should be favored over other
retirement funds, those that invested in Chrysler secured debt. Second, and at least as importantly, when the bankruptcy process deprives a creditor of its promised return, the
prospect of a debtor’s failure looms larger in the eyes of future lenders to future firms. As
a result, given the holding in Chrysler, and the essentially identical holding in the General
Motors case, discussed next, one might expect future firms to face a higher cost of capital, 10 thus dampening economic development at a time when the country can least well
afford impediments to growth.
II.
General Motors
Chrysler was a blueprint for the General Motors bankruptcy, which, like that of
Chrysler, included a sale of the debtor’s valuable assets to an entity that assumed unse9
Section 363(f) of the Bankruptcy Code, which provides the conditions for a sale of assets free and clear
of interests in those assets, is poorly drafted and internally inconsistent. On one reading of the provision, property cannot be sold free of liens unless the sale proceeds are sufficient fully to satisfy those
liens. On another reading, there is no such requirement. See In re PW, LLC, 391 B.R. 25 (9th Cir. BAP
2008), which describes the varying judicial interpretive approaches.
10
Although I am unaware of empirical support for the claim that the Chrysler and General Motors cases
will increase the cost of capital to corporate debtors, the cases are still new and it is not clear whether
they will be extended, a topic to which I return in Part IV, below.
6
Barry E. Adler
Draft: 9/1/2009
cured obligations owed its workers or former workers. In the case of GM, the purchaser,
“New GM,” owned largely by the United States Treasury, agreed to satisfy General Motors’ approximately $20 billion pre-bankruptcy obligation to the VEBA with a new $2.5
billion note as well as $6.5 billion of the new entity’s preferred stock, 17.5% of its common stock, and a warrant to purchase up to an additional 2.5% of the equity; depending
on the success of New GM, the VEBA claim could be paid in full. As in the Chrysler
case, the sale procedures required that, absent special exemption, any competing bidder
was to assume liabilities to the UAW as a condition of the purchase. Therefore, once
again, there was no true market test for the sale.
The primary difference between the cases, other than much larger size of General
Motors, is that in GM there were no objections to the sale by holders of senior-secured
claims, which were held by Unites States or Canadian governments or were to be assumed by the purchaser. Rather, in the case of General Motors, the United States and, to a
lesser extent, Canadian governments were both the sponsors of the asset purchase that
favored the UAW and the senior lenders from whose pockets any consequent diversion of
value likely came. In particular, the United States Treasury, under TARP authority, lent
GM about $50 billion in a combination of pre- and post-petition secured transactions; the
governments assigned these obligations to New GM, which then credit bid for the assets.
Some unsecured creditors objected to the transaction. But while the unsecured claims are
substantial—including about $27 billion in unsecured bonds alone—the GM bankruptcy
estate will receive between 10% and 12% of the shares of New GM plus warrants for additional shares. The value of these shares and warrants, plus that of other assets not tendered to New GM, may well exceed any plausible bid—net of the secured claims—that
GM could have received from anyone else for the GM assets.
Still, just as in the case of Chrysler, the approval of a restricted bid process establishes a dangerous precedent, one that went unnoticed, or at least unnoted, by the court.
In his opinion approving the GM sale, Judge Gerber addresses the objections of some unsecured creditors and makes the following observation:
A 363 sale may … be objectionable as a [disguised reorganization] plan if
the sale itself seeks to allocate or dictate the distribution of sale proceeds
among different classes of creditors. But none of those factors is present
here. The [sale and purchase agreement] does not dictate the terms of a
plan of reorganization, as it does not attempt to dictate or restructure the
rights of the creditors of this estate. It merely brings in value. Creditors
will thereafter share in that value pursuant to a chapter 11 plan subject to
confirmation by the Court. 11
In this passage, however, Judge Gerber ignores the sales procedure, which, like that
in Chrysler, strictly limited the time for competing bids and restricted bidders to those
11
In re General Motors, Corp. 407 B.R. 463 (Bankr. S.D.N.Y. 2009)
7
Barry E. Adler
Draft: 9/1/2009
willing to assume significant UAW liabilities. The process thus precluded a potentially
higher bid by a prospective purchaser who was unwilling to make the same concessions
to the UAW that the government-sponsored purchaser was willing to endure. Thus, there
remained the theoretical possibility that the process impermissibly transferred asset value
from the company’s other creditors to the UAW. This is merely a theoretical possibility.
As noted above, it may well be that no creditor other than the government secured lenders
suffered a loss of priority from the transaction. But the case stands as precedent that
might cause later lenders to doubt whether future debtors will be forced to live up to their
obligations. And as also noted above, wary lenders are inhospitable to economic development.
III.
Potential Extension
It is tempting to dismiss the Chrysler and General Motors bankruptcy cases as sui
generis. The government insinuated itself into the process with cash in hand, and it may
be that the cash was sufficient to pay everyone at least its due. The dissenters may have
been greedy, not victims. And if the judges saw things this way, they may have been willing to approve a process that would not have survived their scrutiny under ordinary circumstances. But even if this is all true, the cases establish a precedent that could undermine the bankruptcy process in the future, even if the government recedes from the scene.
Consider the following illustration, where the government as lender or purchaser is
nowhere to be found. Imagine a simple firm, Debtor, with only two creditors, each unsecured: Supplier, owed $60, and Bank, owed $20. After Debtor runs out of working funds
and files a bankruptcy petition, Bank offers $40 for all of Debtor’s assets (which Bank
intends to resell). Bank contends that this is the best offer Debtor is going to get and that
if Debtor does not accept the offer immediately it will be forced to liquidate piecemeal
for $10. The court agrees and approves the sale over Supplier’s objection even though
there is no auction or other market test for the value of the assets. After the sale, Debtor
moves through the ordinary bankruptcy process and distributes the $40 proceeds ratably
between Supplier and Bank, with $30 to Supplier and $10 to Bank.
As long as the court is correct to accept Bank’s valuation, the sale and the distribution
are appropriate. But what if the court is wrong? Assume that Debtor’s assets are worth
$60. In this case, Supplier should receive $45 and Bank $15. But the sale and distribution
approved by the court has different consequences. Instead, Bank pays $40 for assets
worth $60 (i.e., gains $20) then receives a $10 distribution from Debtor’s bankruptcy estate, for a total effective distribution of $30, half the true value of Debtor’s assets, twice
the amount to which it is entitled. All this while, as a formal matter, it is correct to say, as
the courts did in Chrysler and GM, that the sale proceeds were distributed fairly among
the creditors. The problem, of course, is not with the distribution of sale proceeds received; the problem is with the diversion of value to the purchaser, which paid the estate
too little and thus, in its role as a creditor, received too much. This is Supplier’s com-
8
Barry E. Adler
Draft: 9/1/2009
plaint in this illustration and the dissenting creditors’ complaint in the Chrysler and General Motors case.
In this illustration, an auction would solve the problem—because a bidder would offer $60 foiling Bank’s scheme—as would granting Supplier a veto over the sale to reflect
its dominant position in what would be the unsecured creditor (and only) class were the
proposed distribution part of a reorganization plan. With neither protection in place, Supplier is left to suffer the consequences of judicial error, which can occur no matter how
skilled or well meaning the judge; skilled and well meaning are not synonymous with
omniscient.
As Mark Roe and David Skeel observe in their own criticism of the Chrysler bankruptcy, the ability of a court to approve an untested sale at the behest of some creditors
over the objection of others without the safeguards prescribed by the Bankruptcy Code
returns us to a past centuries’ practice referred to as the equity receivership, where it was
widely believed that powerful, favored creditors routinely victimized the weak and unconnected. 12 The Chrysler and General Motors cases are a step back and in the wrong
direction.
IV.
Proposed Reform
The Chrysler and General Motors bankruptcy cases are objectionable because they
include a sale of virtually all of the debtors assets under §363 of the Bankruptcy Code
without a market test for the value of those assets. In Chrysler and in GM, had the price
paid for the assets been undeniably fair, dissenting creditors would have had no basis for
complaint so long as they received a ratable share of the sale proceeds consistent with
their levels of priority. In neither case, however, was the price undeniably fair. It is problematic that in each case the process favored some creditors over others through the assumption of some claims and the consequent relegation of others to receive perhaps inadequate sales proceeds.
A response to this problem could be a ban on the use of §363 to sell all or substantially all of the assets of a debtor in bankruptcy. Without a sale as a tool for de facto reorganization, a court would be forced to follow the Bankruptcy Code’s procedural provisions in an actual reorganization of a debtor and could not easily deprive creditors of the
Code’s protections. This response would be excessive, however. As long as a sale of a
firm’s assets is subject to a true market test, a sale may be the best and most efficient way
12
See Roe & Skeel, cited in note 7; see also David A. Skeel, Jr., Debt’s Dominion: A History of Bankruptcy Law in America 48-70 (2001) (describing the equity receivership and its faults).
9
Barry E. Adler
Draft: 9/1/2009
to dispose of an insolvent debtor. Indeed, bankruptcy courts have increasingly, and usefully, conducted all-asset sales. 13 The key is to ensure a true market test.
State courts have significant experience in deciding whether a proposed sale of a firm
is likely to achieve the best price for investors. Under a line of cases that comprise what
is referred to as the Revlon doctrine, the Delaware courts have imposed a standard that
directors must meet when a corporation is up for sale. While this standard does not require any particular process in every case, the courts have suggested that there is a general obligation for the directors of the firm to hold an auction or conduct some other form
of market test if there is a doubt about the true value of the firm. 14 Congress would do
well to establish as a minimum procedural safeguard state law requirements for §363
sales of all or substantially all of a debtor’s assets, at least where the debtor is large
enough to justify the administrative expense of such a process.
In addition, as described above, the requirement that a bidder assume some of a
debtor’s liabilities dictates the distribution of sale proceeds, and cannot enhance the
amount of those proceeds. Therefore, a condition of liability assumption is not a proper
part of any sale, and should not be permitted, regardless of applicable state law.
To accomplish these ends, Congress could add to the Bankruptcy Code a new subsection of §363, one that would provide:
The trustee may sell property under subsection (b) or (c) of this section
only if—
(1)(A) where the debtor is not a small business debtor, the sale of all
or substantially all of the debtor’s assets complies with the requirements
that would be imposed on the debtor by applicable nonbankruptcy law if
the debtor were a corporation that was not a debtor and if such corporation’s equity interest were publicly traded and subject to a bid for control;
and (B) the process for the sale of such property imposes no condition,
whether or not subject to exception, that an offeror agree to assume or pay
some but not all claims; or
(2) no holder of a claim, except a claim that will receive on account of
such claim cash equal to the allowed amount of such claim upon distribu-
13
This trend is noted in the Second Circuit’s affirmation of Chrysler, 2009 WL 2382766, which sites,
e.g., Douglas G. Baird and Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751
(2002).
14
The recent Delaware Supreme Court case of Lyondell Chemical Co. v. Ryan, 970 A.2d 235 (Del.
2009) summarizes the current state of the Revlon doctrine (though the holding of Lyondell addresses
only a narrow issue of director liability).
10
Barry E. Adler
Draft: 9/1/2009
tion of the property of the estate or as of the effective date of the debtor’s
confirmed plan, objects to the sale.
This provision, if adopted, would not apply to a small business debtor, 15 which cannot be expected to absorb the expense of auctioning its assets, and would have no effect
on a debtor that, while too large to qualify as a small business debtor under the Bankruptcy Code, is still small enough that applicable state law would not impose a market
test. For large debtors such as Chrysler or GM, however, whether or not publicly
traded, 16 the provision would grant any creditor with a claim that will not be paid in full a
right to insist on the sort of process that state law would provide shareholders of a solvent
firm. This would include, where appropriate, the right to insist on an openly contested
auction with ample time for potential bidders to assess the assets on which they may bid.
Reliance on applicable state law—a common feature elsewhere in the Bankruptcy
Code—would provide a debtor with the flexibility to opt out of an auction or other market test if exigent and unusual circumstances would allow a firm to opt out outside of
bankruptcy. Yet, the provision would advantageously prevent a debtor from concluding a
sale pursuant to a process that state law would disallow even if a bankruptcy judge believed, perhaps mistakenly, that the sale would be in the interest of the bankruptcy estate.
That is, for a large firm, the bankruptcy sale process could not be more permissive than
that required by applicable state law. And under no circumstance could the sale of a
debtor’s assets be conditioned on a bidder’s willingness to assume some but not all of the
debtor’s liabilities, as this practice is illegitimate, and was the crux of the problem in the
Chrysler and GM cases.
15
This term is defined by §101(51D) of the Bankruptcy Code.
16
The proposed provision is designed to apply and to protect creditors in large, privately held firms just
as it would apply to a publicly traded firm. The reference in the proposed provision to a “publicly
traded” controlling interest is designed as a hypothetical test that would trigger the applicability of the
provision; such tests are common in the Bankruptcy Code. A related provision might be desirable to
define “publicly traded” for these purposes, though this term might be plain enough for courts to interpret in context.
11
ANNEX B: “NO BIG DEAL: THE GM AND CHRYSLER CASES
IN CONTEXT”
128
NO BIG DEAL: THE GM AND CHYSLER CASES IN CONTEXT
Stephen J. Lubben1
INTRODUCTION
In the past summer, two historically important North American corporations –
Chrysler and General Motors – entered reorganization proceedings to address their longstanding financial and operational difficulties. Both debtors were provided with
substantial governmental financing from both Canada and the U.S.,2 and both cases
involved a quick sale of the “good” parts of the debtors‟ operating assets, while the
remainder was left behind for liquidation.3
Almost every leading corporate bankruptcy academic has spoken against the
automotive bankruptcy cases. And the Chrysler and GM chapter 11 cases have been
vilified in every major finance-focused media outlet – by everyone from Ralph Nader4 to
Richard Epstein.5 Why?
Many of the arguments against these cases, particularly those made in the press
and by some of the participants in the cases, are hopelessly vague and amount, at heart, to
a statement that the government should prefer investors over unions.6 These are
essentially political questions that do not support their related arguments, including that
these cases somehow violated the “rule of law.” The rule of law is not violated by a
policy disagreement.
1
Daniel J. Moore Professor of Law, Seton Hall University School of Law. As always, Jennifer Ruth
Hoyden made this article much better than it would have been.
2
In the case of Canada, financial assistance came from both the federal and provincial (Ontario)
governments.
3
E.g., In re General Motors Corp,, 2009 Bankr. LEXIS 1687 (Bankr. S.D.N.Y. July 5, 2009).
4
http://online.wsj.com/article/SB124355327992064463.html
5
http://www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-columnists-epstein.html
6
http://www.bloomberg.com/apps/news?pid=20601039&refer=columnist_woolner&sid=aN_5hvV_xqHM
THE GM AND CHRYSLER CASES IN CONTEXT
The academic critics of these chapter 11 cases make arguments that appear more
credible. But they are not any more convincing upon close examination. For example, in
his testimony before Congress,7 Professor Douglas Baird argued that the bidding
procedures approved by the courts in connection with the sale of both companies
amounted to an impermissible, stealth reorganization plan because bidders were required
to treat the unions in the same manner as the initial, government-sponsored bidder.
This might be true if there had been alternative bidders, but in the absence of any
evidence of such a bidder, the bidding procedures are irrelevant. The bidding procedures
could require a competitive bidder to stand on its head, but if there is no such bidder the
contents of the procedures are purely academic. In a period when the credit markets have
been essentially “closed,”8 those who take for granted the existence of unknown or
theoretical bidders have some obligation to explain how such a bidder would have bought
GM, a company with $27 billion of secured debt.9
I use this short paper to address the key arguments against the automotive cases
and contextualize what happened in these two chapter 11 cases. Stripped of their
speculation and “what ifs,” I show that these arguments are no more persuasive than the
loose, unsupported arguments thrown about in the popular press.10 But first, I show how
7
Because of the newness of this issue, few academics have published formal articles on these issues.
Instead, they have engaged these issues in the form of testimony and editorial writings, which I respond to
herein.
8
http://www.ft.com/cms/s/0/8174765a-6058-11de-a09b-00144feabdc0.html
9
See In re General Motors Corp,, 2009 Bankr. LEXIS 1687, *36-37 (Bankr. S.D.N.Y. July 5, 2009)(“There
are no merger partners, acquirers, or investors willing and able to acquire GM's business. Other than the
U.S. Treasury and EDC, there are no lenders willing and able to finance GM's continued operations.
Similarly, there are no lenders willing and able to finance GM in a prolonged chapter 11 case.”).
10
For an example of the latter, see David Brooks, The Quagmire Ahead, N.Y. Times, June 1, 2009 (arguing
that “the Obama plan rides roughshod over the current private investors”).
2
these cases, and particularly their structure – a quick lender-controlled §363 sale – are
entirely within the mainstream of chapter 11 practice for the last decade.11
Congress may well decide, as a matter of policy, that this should end, but until it
does there is little to the idea that these cases are “unprecedented” in their structure.12
The identity of the DIP lender is novel,13 but what happened is routine.14 And the
identity of the lender is not a bankruptcy issue.
I. MODERN CHAPTER 11 PRACTICE: ASSET SALES BEFORE PLANS
There are two sections of the Bankruptcy Code applicable in chapter 11 that
explicitly authorize the sale of property. Section 363(b) authorizes a trustee, and thus the
chapter 11 debtor in possession,15 to sell property of the estate outside the ordinary course
of business.16 And section 1123 provides that a chapter 11 plan may include provisions
for sale of all or any part of the property of the estate.17 The latter course presupposes the
drafting of a complete plan and disclosure statement, creditor voting, and a confirmation
11
Douglas G. Baird & Robert K. Rasmussen, Chapter 11 at Twilight, 56 Stan. L. Rev. 673, 674 (2003).
See also Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2331 n.2 (2008).
12
http://www.msnbc.msn.com/id/30507066/ (quoting Professor Skeel). In this article Skeel argues that
government's role in the case is unprecedented in bankruptcy history, a contention which seems to neglect
the Penn Central case in the 1970s. See In re Penn Central Transportation Co., 596 F.2d 1127, 1149 (3d
Cir. 1979) (“The sheer size of the expenses of administration, the unprecedented scope and number of
compromises preceding adoption of the Plan, and legislative intervention are all factors which require a
unique approach . . . .”).
13
11 U.S.C. §364 (authorizing post-petition or “DIP” lending). In chapter 11, the debtor retains possession
or control of its bankruptcy estate, because no trustee is appointed, and is referred to as the “debtor in
possession” or the “DIP.” 11 U.S.C. §1107(a). See David A. Skeel, Jr., The Past, Present and Future of
Debtor-In-Possession Financing, 25 Cardozo L. Rev. 1905, 1920-29 (2004).
14
Rachael M. Jackson, Comment, Responding to Threats of Bankruptcy Abuse in a Post-Enron World:
Trusting the Bankruptcy Judge as the Guardian of Debtor Estates, 2005 Colum. Bus. L. Rev. 451, 452
(2005).
15
11 U.S.C. §1107(a).
16
John J. Hurley, Chapter 11 Alternative: Section 363 Sale of all of the Debtor's Assets Outside a Plan of
Reorganization, 58 Am. Bankr. L.J. 233, 24-41 (1984) (Noting more than twenty years ago, that “it has
become generally accepted that section 363(b) empowers a trustee or debtor in possession to sell all of the
property of the debtor outside a plan of reorganization.”).
17
11 U.S.C. §1123(b)(4).
3
hearing.18 Section 363 sales are thus considered much faster alternatives, and the
Bankruptcy Code provides no guidance on when either procedure should be used.19
To prevent abuse of the 363 process, courts have developed rules that prevent
imposition of a reorganization plan through the sale process.20 This is the so-called rule
against “sub rosa” plans – that is, plans disguised as sales.21 While all Circuits seem to
follow the rule against covert plans, the precise content of the rule varies by Circuit.22
For example, in the 2d Circuit the rule seems to be a subpart of that jurisdiction‟s larger
requirement that a pre-plan sale be supported by a good business justification.23
Shortcutting the Bankruptcy Code is not a business justification, good or otherwise.24
At the other end of the spectrum, the 5th Circuit seems to have adopted a sense of
the rule against disguised plans as requiring pre-plan sales to comply with the Bankruptcy
Code‟s rules for plan confirmation, particularly when all of the debtor‟s assets are being
sold.25 The 2d Circuit, on the other hand, has expressly rejected this equivalence, and has
held that a pre-plan settlement can even violate the “absolute priority rule”26 if the debtor
18
Cf. Timothy D. Cedrone, A Critical Analysis Of Sport Organization Bankruptcies In The United States
And England: Does Bankruptcy Law Explain The Disparity In Number Of Cases?, 18 SETON HALL J.
SPORTS & ENT. L. 297, 310-12 (2008) (explaining the chapter 11 plan process).
19
See J. Vincent Aug et al., The Plan of Reorganization: A Thing of the Past?, 13 J. Bankr. L. & Prac. 3, 45 (2004) (“A Section 363 sale is generally the preferred method for selling assets because it is quicker and
less expensive, and provides a quick fix to address continuing losses, rapidly depleting assets, and loss of
cash flow.”).
20
Jason Brege, An Efficiency Model of Section 363(b) Sales, 92 Va. L. Rev. 1639, 1650 (2006).
21
The phrase was first used in In re Braniff Airways, Inc., 700 F.2d 935 (5 th Cir. 1983), but seems to add
little to the discussion.
22
James J. White, Death and Resurrection of Secured Credit, 12 Am. Bankr. Inst. L. Rev. 139, 161-63
(2004).
23
Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir. 1983).
24
In re Chrysler LLC, 2009 WL 2382766, *6 (2d Cir. Aug 05, 2009).
25
See, e.g., In re Babcock and Wilcox Company, 250 F.3d 955 (5th Cir. 2001); In re Continental Air Lines,
Inc. 780 F.2d 1223 (5th Cir. 1986); see also In re Gulf Coast Oil Corp., 404 B.R. 407 (Bankr. S.D. Tex.
2009).
26
The rule that each layer of debt be paid in full, starting with the most senior debt, before any junior claim
receives any recovery. See generally Douglas G. Baird & Thomas H. Jackson, Bargaining After the Fall
and the Contours of the Absolute Priority Rule, 55 U. Chi. L. Rev. 738 (1988).
4
puts forth a sufficiently compelling business justification.27 In short, until the Supreme
Court or Congress weighs in on this matter, the location of the chapter 11 cases can have
some bearing on the law applied in the case.28
Once a debtor in possession elects to sell its assets in a section 363 sale, the
process typically involves indentifying an initial bidder, frequently called a “stalking
horse,” and approval of bidding procedures.29 These bidding procedures provide
structure for the solicitation of competing bids, followed by an auction if any competing
bids materialize.30 Throughout the process it is widely recognized that the bankruptcy
courts have wide discretion in structuring sales of estate assets,31 and prospective
purchasers are often counseled to expect a “malleable” process.32
In particular, the ultimate goal is maximizing the value of the estate, to increase
the return to creditors.33 Thus, there is substantial caselaw to support the notion that
“non-conforming” bids must be considered by bankruptcy courts if doing so will increase
the return to creditors.34
***
27
Motorola, Inc. v. Official Comm. of Unsecured Creditors and J.P. Morgan Chase Bank, N.A. (In re
Iridium Operating LLC), 478 F.3d 452, 466 (2d Cir. 2007).
28
Cf. Stephen J. Lubben, Delaware’s Irrelevance, 16 A.B.I. L. Rev. 267 (2008).
29
See In re O'Brien Environmental Energy, Inc., 181 F.3d 527, 530 (3rd Cir. 1999).
30
See C.R. Bowles & John Egan, The Sale of the Century or a Fraud on Creditors?: The Fiduciary Duty of
Trustees and Debtors in Possession Relating to the "Sale" of a Debtor's Assets in Bankruptcy, 28 U. Mem.
L. Rev. 781, 805-36 (1998).
31
In re Financial News Network, Inc., 980 F.2d 165, 169 (2d Cir. 1992) (holding that the Bankruptcy Court
may consider additional evidence pertaining to a bid after the official close of bidding, stating that “we
have observed that „[f]irst and foremost is the notion that a bankruptcy judge must not be shackled with
unnecessarily rigid rules when exercising the undoubtedly broad administrative power granted him under
the [Bankruptcy] Code”‟) (quoting In re Lionel Corp., 722 F.2d 1063, 1069 (2d Cir. 1983)).
32
In re Food Barn Stores, Inc., 107 F.3d 558, 565 (8th Cir. 1997).
33
In re Chung King, Inc., 753 F.2d 547, 549 (7th Cir. 1985).
34
See, e.g., Corp. Assets, Inc. v. Paloian, 368 F.3d 761 (7th Cir. 2004); In re Financial News Network, Inc.,
126 B.R. 152 (S.D.N.Y. 1991); In re Wintex, 158 B.R. 540 (D. Mass 1992); In re Edwards, 228 B.R. 552
(Bankr. E.D. Pa. 1998).
5
For much of the early years of the Bankruptcy Code and chapter 11, section 363
sales were of limited interest. Indeed, a review of the many cases in Lynn LoPucki‟s
Bankruptcy Research Database35 shows that only about a half-dozen cases before 1995
involved important 363 issues.36 But in the past ten to fifteen years, secured lenders have
used this provision, plus the control inherent in being a secured lender – particularly
control over the debtor‟s cash,37 to take charge of chapter 11 cases.38 Among the wellknown debtors that have used 363 sales in their cases are TWA, Vlasic Foods, Polaroid
and Bethlehem Steel.39
In the new world of sale-driven chapter 11 cases, the secured lender drives the
process by the simple fact that it has no obligation to fund the debtor‟s reorganization
attempts, and thus funding will be provided only if it also benefits the controlling
lender.40 The lenders are willing to fund a quick sale because section 363 provides a
better mechanism for selling assets than state foreclosure law.41
Other secured lenders are protected from “low ball” sales by their ability to credit
bid their claim,42 and take over control of the collateral.43 Likewise, other creditors who
35
http://lopucki.law.ucla.edu/
A complete list of cases is attached as Appendix A to my testimony before the TARP Congressional
Oversight Panel, available at http://cop.senate.gov/hearings/library/hearing-072709-detroithearing.cfm.
37
Douglas G. Baird & Robert K. Rasmussen, Private Debt and the Missing Lever of Corporate
Governance, 154 U. Pa. L. Rev. 1209, 1229 (2006).
38
Jay Lawrence Westbrook, The Control of Wealth in Bankruptcy, 82 Tex. L. Rev. 795 (2005).
39
Cf. Lynn M. LoPucki & Joseph W. Doherty, Bankruptcy Fire Sales, 106 Mich. L. Rev. 1 (2007).
40
Baird & Rasmussen, Missing Lever, supra note 37, at 1239-40. See also In re Decora Indus., 2002 WL
32332749, at *3 (D.Del. May 20, 2002).
41
See In re Trans World Airlines, Inc., 322 F.3d 283, 288-90, 293 (3d Cir. 2003).
42
In Chrysler, where the ability to credit bid was most relevant, the dissenting lenders had no independent
right to credit bid, indeed they were arguably not even secured creditors when acting independently.
Instead, all of the security interests in this loan were held by a collateral trustee, for the benefit of all
lenders. Under the loan documents, the trustee was instructed to take orders from the agent bank upon
default – Chase. At the Chrysler sale hearing, the government testified that Chase had been told it could
credit bid if it did not like the deal. The dissenting lenders, representing less than 5% of the total loan, had
no right under the load documents to override Chase‟s decision in this regard. The government certainly
could have explained this before the sale hearing, as the apparent inability to credit bid appeared to
36
6
think the sale price is too low can orchestrate a competing bid. Once the sale is
completed, the creditors are further protected during the distribution of the sale proceeds
by the normal rules of chapter 11, including the absolute priority rule44 and the rule
against “unfair discrimination.”45
The basic structure used to reorganize both GM and Chrysler was not
unprecedented. Indeed, it was entirely ordinary.46 In both cases the “good” assets were
sold to new entities.47 The consideration for that sale goes to the “old” debtor, and will
be distributed according to the absolute priority rule. None of this constitutes a covert
reorganization plan or a corruption of the bankruptcy process.48
The drawn-out, debtor-controlled chapter 11 process of Eastern Airlines and Pan
Am is long gone.49 Whether this is a good thing is open to debate, but it clearly reflects
current reality50 and creditor preference.51 Moreover, the 2005 Amendments to the
Bankruptcy Code, which increased the difficulty of pursuing a traditional chapter 11
represent a problem with these cases. http://www.creditslips.org/creditslips/2009/05/chrysler-creditbidding-again.html.
43
See Bruce A. Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan.
L. Rev. 69, 121-22 (1991).
44
11 U.S.C. §1129. Cf. John D. Ayer, Rethinking Absolute Priority After Ahlers, 87 Mich. L. Rev. 963,
969-70 (1989).
45
Bruce A. Markell, A New Perspective on Unfair Discrimination in Chapter 11, 72 Am. Bankr. L.J. 227,
228 (1998).
46
Douglas R. Baird, The New Face of Chapter 11, 12 Am. Bankr. Inst. L. Rev. 69, 80-82 (2004).
47
Cf. In re Dial-A-Mattress Operating Corp., 2009 Bankr. LEXIS 1801 (Bankr. E.D.N.Y. June 24, 2009)
(approving 363 sale to newly created corporation).
48
See In re Trans World Airlines, Inc., 2001 Bankr. LEXIS 980, 2001 WL 1820326, *11 (Bankr. D. Del.
Apr. 2, 2001).
49
Douglas G. Baird & Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751, 751 (2002)
(“Corporate reorganizations have all but disappeared. Giant corporations make headlines when they file for
Chapter 11, but they are no longer using it to rescue a firm from imminent failure. Many use Chapter 11
merely to sell their assets and divide up the proceeds.”).
50
Stephen J. Lubben, The “New and Improved” Chapter 11, 93 Ky. L.J. 839, 841‐ 42 (2005) (“[I]t is not
clear that this development promotes social welfare. Rather, lender control may only benefit lenders.”).
51
Harvey R. Miller & Shai Y. Waisman, Is Chapter 11 Bankrupt?, 47 B.C. L. Rev. 129, 156-57 (2005).
7
reorganization plan arguably suggest a Congressional “push” in favor of quicker, saledriven chapter 11 cases.52
The notion that the speed of these cases was unique, or that the use of section 363
to effectuate a quick sale was novel, is therefore without merit.53 As Judge Gonzalez
noted in Chrysler, “[t]he sale transaction…is similar to that presented in other cases in
which exigent circumstances warrant an expeditious sale of assets prior to confirmation
of a plan. The fact that the U.S. government is the primary source of funding does not
alter the analysis under bankruptcy law.”54
Of course, the academic critics of theses cases have largely avoided this line of
argument. Since many of the critics were among those to first discuss the new face of
chapter 11 in an academic setting,55 and were generally supportive of the new order,56 or
have otherwise long argued for chapter 11 to move away from traditional reorganizations
in favor of market-based solutions, it could hardly be otherwise.57 In the next part of this
paper I address the more specific arguments that these leading scholars have made in the
press and before Congress and the TARP Congressional Oversight Panel.
52
Lubben, Stephen J., Systematic Risk & Chapter 11(May 4, 2009). Temple Law Review, 2009; Seton Hall
Public Law Research Paper No. 1399015. Available at SSRN: http://ssrn.com/abstract=1399015.
53
Indeed, the Lehman Brothers sale was completed in even less time, with no government involvement.
Stephen J. Lubben, The Sale of the Century and Its Impact on Asset Securitization: Lehman Brothers, 27
Am. Bankr. Inst. Journal No. 10, page 1 (2009).
54
In re Chrysler LLC, 405 B.R. 84, 87 (Bankr. S.D.N.Y. 2009), aff’d, 2009 WL 2382766 (2nd Cir. Aug 05,
2009).
55
E.g., David A. Skeel, Jr., Creditors' Ball: The "New" New Corporate Governance in Chapter 11, 152 U.
Pa. L. Rev. 917, 935-38 (2003).
56
Barry E. Adler, Bankruptcy Primitives, 12 Am. Bankr. Inst. L. Rev. 219, 224-25 (2004).
57
See Barry E. Adler & Ian Ayres, A Dilution Mechanism for Valuing Corporations in Bankruptcy, 111
Yale L.J. 83, 101-03 (2001); Mark J. Roe, Bankruptcy and Debt: A New Model for Corporate
Reorganization, 83 Colum. L. Rev. 527, 559 (1983).
8
II. THE ACADEMIC ARGUMENTS
In this section I address the arguments that bankruptcy academics have made
against the automotive bankruptcies. These arguments are generally more sophisticated
than those presented in the cases themselves, yet I contend they still suffer from serious
flaws. I make little effort to engage the criticisms mounted by non-bankruptcy legal
academics, like Professor Richard Epstein, a well-known torts expert at the University of
Chicago Law School.58 As part of his critique of these bankruptcy cases, Professor
Epstein notes that President Obama is “no bankruptcy lawyer.”59 The same, of course,
can be said for Professor Epstein – and the suggestion that the President personally
negotiated these cases is silly.60 More generally, I have previously argued that many of
these critiques of the chapter 11 cases show little understanding of how chapter 11
works.61 The following arguments suffer from no such deficiencies.
A. Bidding Procedures and “Sub Rosa” Plans (Douglas Baird)
In his recent testimony before the House Subcommittee on Commercial and
Administrative Law,62 Professor Baird advanced a neat argument that the bidding
procedures approved in the automotive cases so “locked in” a particular deal that they
amounted to a plan of reorganization, in violation of the caselaw discussed in the prior
section of this paper.
58
http://www.law.uchicago.edu/faculty/epstein
http://www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-columnists-epstein.html
60
The full quote is “President Obama--no bankruptcy lawyer--twisted the arms of the banks that have
received TARP money to waive their priority.” Id. As I discuss infra, the “strong arming” argument is a
contention without any supporting evidence.
61
http://www.creditslips.org/creditslips/2009/06/the-absolute-priority-rule.html
62
http://judiciary.house.gov/hearings/pdf/Baird090722.pdf
59
9
In both automotive cases, the approved bidding procedures provided that a bidder
would only become a “Qualified Bidder” if they agreed to assume the same collective
bargaining agreements that the initial bidder intended to assume. Because this
requirement could have led a bidder to offer less cash for the debtors‟ assets – since they
would have been forced to assume this additional liability – Baird argues that the process
became “both a sale and a sub rosa plan.”63
The requirement in the bidding procedures that any bidder assume the UAW
agreements smacks of overreaching. But was another bidder willing to pay more than $2
billion for Chrysler‟s assets or otherwise top the proffered bids? I doubt it, and if not the
bidding procedures are irrelevant.
A bidding procedure that only applies to competing bidders is a dead letter if there
are no competing bidders – the terms of the bidding procedures are no more relevant than
the instructions for inflating a life vest on a plane you will never fly on. The dissenting
Chrysler lenders,64 and some academic commentators,65 have argued that the bidding
procedures may have deterred an unknown bidder, thus undermining the process.
The deterrence argument presumes that the procedures have more “stickiness”
than they actually do. As noted in Part I, the caselaw is abundant and clear that
bankruptcy courts have an obligation to consider the highest bid presented, even if it does
not conform with previously approved bidding procedures. Any investor who
contemplates buying a multi-billion dollar distressed corporation will know this – the
contrary presumption is not credible.
63
Testimony at page 5.
http://www.forbes.com/feeds/afx/2009/05/05/afx6380833.html
65
For example, Mark Roe in the commentary I discuss, infra.
64
10
Irrespective of the potential effects of the bidding procedures, there are good
independent reasons to think that there were no inhibited bidders who failed to appear.
The automotive industry, both domestic and foreign, is presently heavily distressed. At
the same time, the credit markets show no ability to provide the kind of financing that
would be needed to purchase either GM or Chrysler.66
And why should we not trust the market information that is available to us? The
senior lenders – who could have “credit bid” their claim67 – showed no interest in taking
on these assets. Chrysler had been trying to sell itself for months before the chapter 11
case, with no success at all.68 And recall that in 2007, a time of easy credit and stable
markets, Daimler essentially paid somebody to take Chrysler off its hands.69 This does
not suggest a group of assets with a lot of hidden value.
Professor Baird acknowledges the theoretical nature of his concern,70 but still
worries that the bankruptcy court could have done more. It is doubtful that such a move
would have had any purpose, and thus seems to be an argument for more window
dressing.
B. Plan-Sale Equivalence (Barry Adler)
In his remarks before the TARP Congressional Oversight Panel hearing in Detroit
this past July,71 Professor Adler argued
that Chapter 11 contains rules designed precisely to protect creditors from a
judicial determination with which the creditors disagree. When Judge Gonzalez
66
http://www.ft.com/cms/s/0/33dbf8a6-82a3-11de-ab4a-00144feabdc0.html
That is, forgiven their debt in exchange for the companies‟ assets. 11 U.S.C. §363(k).
68
http://www.bloomberg.com/apps/news?pid=20601103&sid=aCWc52_2KMYs&refer=us
69
http://business.timesonline.co.uk/tol/business/industry_sectors/engineering/article1786611.ece
70
Testimony at pages 5-6.
71
http://cop.senate.gov/documents/testimony-072709-adler.pdf
67
11
approved the Chrysler sale, he stripped these protections from the secured
creditors.72
Adler goes on to argue that the requirements of chapter 11 – particularly the “fair and
equitable” and “no unfair discrimination” provisions of section 1129(b) – should have
been applied to protect the interests of senior creditors.
There are two problems with this analysis. First, this is not the law in the 2d
Circuit, where both GM and Chrysler‟s cases were filed. As previously discussed in Part
I, the 2d Circuit has never held that 363 sales are subject to the full requirements of
chapter 11, and has affirmatively held that one key part of section 1129(b), the absolute
priority rule, can be ignored in situations where there is a suitable justification.73 In short,
Adler‟s position is a fair statement of the law of the 5th Circuit, and there could be good
arguments for why this is what the law in the 2d Circuit should be, but it hardly seems
fair to fault a bankruptcy court for following the (binding) opinions issued by its own
Circuit Court.
More importantly, Adler has to rely on conjecture to even invoke the provisions
of section 1129(b). As he notes, the tests he points to are class protections that are only
applicable if the class in question rejects the debtor‟s plan.74 Given that more than 90%
of the Chrysler lenders supported the transaction, the reasons for imagining this class
rejecting the plan are somewhat unclear.
Professor Adler argues “the accepting secured creditors were largely recipients of
government TARP funds and thus arguably beholden to the government, which
72
Testimony at page 4 (discussing the Chryslers case).
Motorola, Inc. v. Official Comm. of Unsecured Creditors and J.P. Morgan Chase Bank, N.A. (In re
Iridium Operating LLC), 478 F.3d 452, 466 (2d Cir. 2007).
74
11 U.S.C. §1129(b)(1) (“if all of the applicable requirements of subsection (a) of this section other than
paragraph (8) are met with respect to a plan, the court, on request of the proponent of the plan, shall
confirm the plan notwithstanding the requirements of such paragraph if . . . “); see also 11 U.S.C.
§1129(a)(8) (requiring all classes to accept the plan).
73
12
engineered the distribution to the UAW.”75 This, he argues, means that the lenders would
have to be split into two classes, giving the non-TARP parties a means of rejecting the
plan and invoking section 1129(b).76
The problem is that after extensive discovery and depositions, there is still no
evidence to support the claim that the TARP lenders were bullied into accepting the
proffered deal in Chrysler. In other contexts, like that of home mortgage modifications, it
appears that some of the biggest recipients of TARP funds have been the ones least likely
to bend to Administration policy.77 And if these lenders were not “beholden” to the
Treasury, the entire argument evaporates.
It has to be remembered that all of the key players in these cases were highly
sophisticated. GM‟s board – represented by Cravath, Swaine & Moore – is hardly a
group to be easily cowed by some hard bargaining. And Chrysler‟s senior lenders had
agreed by contract to have JPMorgan Chase, the lead lender, negotiate on their behalf.78
We would have heard if Jamie Dimon felt Chase was being strong-armed into supporting
the sale – he‟s not known to be shy.79
Likewise, it was entirely rational for the bulk of Chrysler‟s secured lenders to
believe that $2 billion in cash, on their $6.9 billion claim, was, by far, the highest
possible recovery they could obtain. Indeed, a nearly 30% recovery is clearly better than
75
Testimony at page 5 (emphasis added).
See G. Eric Brunstad, Jr. & Mike Sigal, Competitive Choice Theory and the Unresolved Doctrines of
Classification and Unfair Discrimination in Business Reorganizations Under the Bankruptcy Code, 55 Bus.
Law. 1, 24-32 (1999).
77
http://www.bloomberg.com/apps/news?pid=20601103&sid=a7kYntqozaKo
78
Under section 6.12 of the Chrysler collateral agreement, Chase, as agent, has the power to release the
liens granted under the loan agreements. Indeed, upon default the agent has full control over any
“Collection Enforcement Action,” defined to include “exercising any other right or remedy under the
[UCC] . . . or under any Bankruptcy Law or other applicable law.” This is not a problem created by TARP,
the Bankruptcy Code, or the federal government, but by the loan agreement to which the lenders
themselves voluntarily agreed to be bound.
79
http://www.businessweek.com/careers/managementiq/archives/2008/10/ceos_on_the_cou.html
76
13
these lenders could have done if they had liquidated the debtor‟s assets. And liquidation
was the lenders‟ only real alternative.
While commentators often imply that liquidation is a costless endeavor,
liquidating a company the size of Chrysler would have cost millions of dollars.
Liquidation would thus only make sense if the lenders could be sure to recover more than
$2 billion plus the costs of liquidation. Given the distressed state of the automotive
industry, and the attendant effects this reality had for the value of Chrysler‟s assets, the
lenders no doubt saw the wisdom of a risk-free $2 billion.
C. A Return to the (Bad) Old Days? (David Skeel)
In testimony before Congress,80 and as more fully explained in an article written
for the American Enterprise Institute,81 David Skeel has argued that the automotive cases
represent a resurrection of the worst features of corporate reorganization from 100 years
ago. In particular, Professor Skeel argues that the sale transaction in both automotive
cases amounted to the kind of “sham” sale that was once a common feature of railroad
receiverships, a type of corporate reorganization Congress ended in the New Deal by
federalizing corporate bankruptcy.82
Skeel is undoubtedly correct that railroad receiverships involved stylized sales of
the railroad‟s assets,83 but he is wrong to identify that as the key problem with the
80
http://judiciary.house.gov/hearings/pdf/Skeel090521.pdf
http://www.american.com/archive/2009/may-2009/why-the-chrysler-deal-would-horrify-a-new-dealer
82
DAVID A. SKEEL, JR., DEBT'S DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA 48-70 (2001).
83
In particular, receiverships involved the initiation of a foreclosure action by a secured lender, the credit
bid by that secured lender of its claim, and the transfer of the debtor‟s assets to a new shell corporation,
capitalized as agreed by the prior holders of the debtor‟s securities. EDWARD SHERWOOD MEAD,
CORPORATION FINANCE 406-12 (rev. ed. 1920) (describing the process used to commence a receivership).
81
14
receiverships.84 Indeed, Professor Skeel himself previously explained that the problem
with receiverships was that
[t]he Wall Street professionals who organized protective committees in order to
negotiate the reorganization seemed to focus more on obtaining generous fees for
themselves than on striking a good bargain on behalf of the scattered investors
whom they purported to represent. The big losers, of course, were small,
individual investors.85
In addition, the process was generally designed to “squeeze out” small
bondholders, benefiting the shareholders (who were typically large institutions) and
management.86 None of this really has much to do with the sale structure.
And it clearly is not Professor Skeel‟s primary concern either – instead the
receivership analogy simply serves as a frame for his larger arguments that the
automakers assets were undervalued and that the structure of the sale process unduly
favored the unions over other creditors.87
But in neither case were the objecting creditors able to produce any credible
evidence that the debtors were worth more than was being paid, and in fact the evidence
presented suggested that strategy promoted by the Automotive Task Force was all that
stood between these investors and a substantially lower recovery.88 In addition, before
presuming that these cases were some sort of intrigue to buy the automakers‟ assets on
the cheap, it once again bears looking at the available market information. For example,
84
See Stephen J. Lubben, Railroad Receiverships and Modern Bankruptcy Theory, 89 Cornell L. Rev.
1420, 1445-51 (2004).
85
David A. Skeel, Jr., Vern Countryman and the Path of Progressive (and Populist) Bankruptcy
Scholarship, 113 Harv. L. Rev. 1075, 1089 (2000)(footnote omitted).
86
Stephen J. Lubben, Out of the Past: Railroads & Sovereign Debt Restructuring, 35 Geo. J. Int'l L. 845,
850 (2004). See also In re Wabash Valley Power Ass‟n, 72 F.3d 1305, 1314 (7th Cir. 1995) (“In its
origins, the absolute priority rule was a judicial invention designed to preclude the practice in railroad
reorganizations of "squeezing out' intermediate unsecured creditors through collusion between secured
creditors and stockholders (who were often the same people).”).
87
This is particularly clear from the American Enterprise Institute paper, supra note 81.
88
See In re Chrysler LLC, 405 B.R. 84, 105-06 (Bankr. S.D.N.Y. 2009), aff‟d ), aff’d, 2009 WL 2382766
(2nd Cir. Aug 05, 2009).
15
the dissenting Chrysler lenders – the Indiana Pension funds – paid $17 million for their
stake in the senior debt that had a face value of $43 million. They received $15 million
through the Chrysler bankruptcy process.89 That is, their claim was paid at more than
88% of its market value, measured at the time the funds bought their claim. If the market
price was roughly accurate, then the notion that the purchaser underpaid for Chrysler‟s
assets falls apart.
And if the purchaser did not underpay for the assets, then the idea that the
bankruptcy court should concern itself with the companies‟ post-sale transactions with
the unions also becomes suspect. The UAW is getting better treatment than other
unsecured creditors. But that better treatment is not coming from the debtor. It is coming
from the government, passing through the purchaser of the “good” assets in each case.
Asset buyers have no obligation to buy anything more than they want to buy, and no
obligation to absorb any claims other than those the buyer feels it needs to operate the
purchased assets.
We can debate whether it is wise for the government to bail out the UAW, but it
does not implicate the bankruptcy process unless this bail out is being funded by value
that should have gone into the debtors‟ estates. But if the assets were not undervalued,
Skeel‟s argument that the funds going to the unions should have instead gone into the
estates amounts to little more than a claim that the buyers (and thus the U.S. and
Canadian governments) should have overpaid for the debtors‟ assets.90
89
http://www.creditslips.org/creditslips/2009/06/what-did-the-indiana-funds-want.html
Or, alternatively, that the creditors should have received a bailout too – a policy question, and not one
that demonstrates a violation of the Bankruptcy Code or the “rule of law.”
90
16
D. Government Overinvestment and the Bidding Procedures, Again (Mark Roe).
In a recent editorial in Forbes,91 Mark Roe criticizes the government‟s decision to
“flood[] Chrysler with money on non-commercial terms” and argues that the results in
that case should not be taken at face value since “there was a market test here, but in form
only, because the bidding was for the proposed plan.” The first claim accuses the
government of overinvestment in the automakers, the second reanimates the argument
that the bidding procedures mattered in these cases.
It is not clear that the overinvestment argument is a bankruptcy issue; rather, it
seems like another way of saying that Professor Roe does not agree with the
Administration‟s policy choices. It is also not clear that it is an issue confined to
government as DIP lender. Most DIP financing comes from the debtor‟s pre-petition
lender,92 and while these loans are often individually profitable, one might also wonder if
there were not many cases of overinvestment by banks looking to postpone the
consequences of an earlier lending mistake. Moreover, while Roe characterizes the
automotive cases as an example of the government propping up defective companies, that
alone does not tell us if the move was rational or socially efficient. For example, if the
government faced an even greater cost upon liquidation of the debtors through
unemployment payments, unpaid environmental cleanup costs, and other analogous
expenses, providing bankruptcy financing to these debtors was the right move.93 Indeed,
unlike a private lender who can largely ignore these costs since they will be absorbed by
the government, the government as lender has a better set of incentives in this instance.
91
http://www.law.harvard.edu/news/2009/06/15_roe.html
A. Mechele Dickerson, Privatizing Ethics In Corporate Reorganizations, 93 Minn. L. Rev. 875, 908-09
(2009).
93
http://www.nytimes.com/2009/06/01/business/01deese.html
92
17
And as noted earlier, the idea that the bidding procedures prevented a “market
test” of the value of the debtors‟ assets presupposes that there was a market for these
assets.
CONCLUSION
The current reality of chapter 11 is undeniable – it is a sale-driven process, where
courts seek to maximize the return to creditors. Chrysler and GM sit contentedly within
this arrangement.
In analyzing these cases, it is helpful to consider if a proffered objection would be
tenable if a private lender had structured the cases. If not, one has to consider if the
special nature of the government, and the powers inherent therein, make a difference or if
the critique in question is simply being advanced because of the proponent‟s discomfort
with government involvement in corporate finance.
The objecting creditors in these cases had several options. They could have
brought another buyer to the table, they could have credit bid, and they could have even
sued the agent banks or indenture trustees that allegedly let them down. The fact that the
objecting creditors did not pursue any of these more traditional options, and instead chose
melodrama, is quite telling. Insisting that the buyer pay more than the debtor‟s assets are
worth, or that the buyer pay specific creditors, or that the buyer not pay specific creditors,
are not bankruptcy arguments but rather rhetorical arguments.
***
18
In short, by and large, I think that the criticism of the automotive bankruptcy
cases does not stand up to careful scrutiny. In the future, Congress may choose to
consider the policy implications of a chapter 11 process that has become heavily driven
by quick asset sales and lender control.94 But given the reality of current chapter 11
practice, both GM and Chrysler‟s chapter 11 cases were not all that exceptional.
94
See George W. Kuney, Let's Make it Official: Adding an Explicit Preplan Sale Process as an Alternative
Exit from Bankruptcy, 40 Hous. L. Rev. 1265, 1267-68 (2004).
19
Section Two: Additional Views
A. Representative Jeb Hensarling
Although I commend the Panel and its staff for their efforts in producing the September
report, I do not concur with all of the analysis and conclusions presented and, thus, dissent. I
would like, however, to thank the Panel for incorporating several of the suggestions I offered
during the drafting process.
I offer the following summary of my Dissenting Views:

Over the past several months the American taxpayers have involuntarily “invested” over
$81 billion in Chrysler, General Motors (GM) and the other auto programs. According to
the latest estimate from the Congressional Budget Office (CBO), the investment of TARP
funds in the auto industry is expected to add $40 billion more to the deficit than CBO
calculated just five months earlier in March 2009. This data supports Ron Bloom‟s – the
head of Treasury‟s Auto Task Force recent comment that it is unlikely the taxpayers will
recover all of their TARP funded investments in Chrysler and GM.

By making such an unprecedented investment in Chrysler and GM, the Administration by
definition chose not to assist other Americans who are in need. With the economic
suffering the American taxpayers have endured during the past two years one wonders
why Chrysler and GM merited such generosity to the exclusion of other taxpayers. The
government clearly picked winners and losers.

In my view, the Administration used taxpayer funds to orchestrate the bankruptcies of
Chrysler and GM so as to promote its economic, social and political agenda.

A number of bankruptcy law academics at top-tier law schools have questioned the
Chrysler and GM bankruptcies. In the Chrysler and GM proceedings, Section 363 of the
United States bankruptcy code was used by the Administration to upset well-established
commercial law principles and the contractual expectations of the parties. A summary of
the bankruptcy issues is provided in Annexes A and B.

On a “before” v. “after” basis, the Chrysler and GM bankruptcy cases make little legal or
economic sense. How is it possible that the Chrysler and GM pension funds (VEBAs) –
unsecured creditors – received a greater allocation of proceeds than the Chrysler senior
secured creditors or the GM bondholders? In other words, why did the United States
government spend tens of billions of dollars of taxpayer money to bail out employees and
retirees of the UAW to the detriment of other non-UAW employees and retirees – such as
148
retired schoolteachers and police officers from the State of Indiana – whose pension
funds invested in Chrysler and GM indebtedness?

A plain reading of the Emergency Economic Stabilization Act of 2008 (EESA) would
necessarily preclude the employment of TARP funds for the benefit of the auto industry.

The private sector must now consider incorporating the concept of “political risk” into its
analysis before engaging in any direct or indirect transaction with the United States
government. While private sector participants are accustomed to operating within a
complex legal and regulatory environment, many are unfamiliar with the emerging trend
of public sector participants to bend or restructure rules and regulations so as to promote
their economic, social and political agenda as was clearly evident in the Chrysler and GM
bankruptcies.

I recommend that SIGTARP investigate: (i) whether it was appropriate for the
Administration to use TARP funds in the Chrysler and GM transactions; (ii) Tom
Lauria‟s claim that his client, Perella Weinberg, “was directly threatened by the White
House and in essence compelled to withdraw its opposition to the deal under threat that
the full force of the White House press corps would destroy its reputation if it continued
to fight;” and (iii) the assertion that the Administration assisted with the negotiation of a
“sweetheart deal” for the benefit of Platinum Equity in the Delphi transaction.

Additional recommendations are provided in my Dissenting Views.
1. Policy Issues and Fundamental Questions Arising from the Use of TARP
Proceeds in the Chrysler and GM Bankruptcies
Over the past several months the American taxpayers have involuntarily “invested” over
$81 billion525 in Chrysler, GM and the other auto programs. Recently, in a discussion with staff
members of the Panel, Ron Bloom, the head of Treasury‟s Auto Task Force, stated that it is
unlikely the taxpayers will recover all of their TARP-funded investments in Chrysler and GM.526
525
According to the Panel‟s report, as of August 5, 2009, over $73 billion of TARP funds remain
outstanding with respect to the auto programs.
526
Following Mr. Bloom‟s statement, Treasury staff contacted COP staff and attempted to clarify Mr.
Bloom‟s comments. The Treasury staff members stressed that the recovery of the TARP funds invested in Chrysler
and GM will ultimately depend upon the financial success or failure of Chrysler and GM and whether a favorable
market develops for the sale of the equity interests held by the United States government in the automakers. In
addition, they stated that although Mr. Bloom may have appeared “personally pessimistic” during his meeting with
COP staff, it is simply not possible for the Auto Task Force to predict the future value of Chrysler and GM stock.
The Treasury staffers did acknowledge that the equity interests of Chrysler and GM will have to “appreciate
sharply” for the American taxpayers to receive repayment in full. This attempt to explain Mr. Bloom‟s remarks is
not particularly helpful because it is apparent that the TARP funds will not be repaid unless Chrysler and GM
perform in an extraordinary manner – something they have not done in a long time. That Mr. Bloom – the head of
the Auto Task Force – may be “personally pessimistic” regarding these prospects remains significant.
149
In addition, auto assistance provided by the Administration has added tens of billions of dollars
to the budget deficit, and the losses are continuing to increase above and beyond initial
expectations. According to the latest estimate from the Congressional Budget Office (CBO), the
investment of TARP funds in the auto industry is expected to add $40 billion more to the deficit
than CBO calculated just five months earlier in March 2009.527 A reasonable interpretation of
such estimate provides that the American taxpayers may suffer a loss of over 50 percent of the
TARP funds invested in Chrysler, GM and the other auto programs. How is it possible that with
the economic challenges facing our nation the Administration chose to allocate such a significant
share of the TARP to such questionable investments? 528 How much additional funding will be
provided by the Administration for Chrysler and GM? What is the strategy and timeline for
recouping taxpayer dollars? What are the metrics for determining whether or not Chrysler and
GM are “successful,” and will the Administration continue to provide assistance until this is
attained? If the Administration now equates TARP funds with Stimulus funds, why not direct
the resources in the most efficient, equitable and transparent manner by granting tax relief to
small businesses – the economic engine that creates approximately three out of every four jobs –
and other American taxpayers?
By making such an unprecedented investment in Chrysler and GM529 the Administration
by definition chose not to assist other Americans who are in need. With the economic suffering
the American taxpayers have endured during the past two years, one wonders why Chrysler and
GM merited such generosity to the exclusion of other taxpayers.530 Why, indeed, did the United
527
See “The Budget and Economic Outlook: An Update,” Congressional Budget Office¸ August 2009,
pages 55-56, at www.cbo.gov/ftpdocs/105xx/doc10521/08-25-BudgetUpdate.pdf. The report provides in part:
The improvement in market conditions results in a reduction in the subsidy rate associated with
the Capital Purchase Program (CPP – a major initiative through which the government purchases
preferred stock and warrants (for the future purchase of common stock) from banks. CBO has
dropped the projected subsidy for the remaining investments in that program from 35 percent in
the March baseline to 13 percent. The decrease in the estimated CPP subsidy cost also reflects
banks‟ repurchase of $70 billion of preferred stock through June. Similarly, the estimated subsidy
cost for other investments in preferred stock (for example, that of American International Group)
has also been reduced. Partially offsetting those reductions in projected costs is the expansion of
assistance to the automotive industry; CBO has raised its estimate of the costs of that assistance
by nearly $40 billion relative to the March baseline. [emphasis added.]
In addition, our country faces a staggering deficit of $1.6 trillion in 2009, and a debt that more-than triples
in ten years.
528
Section 113 of EESA discusses the “[m]inimization of long-term costs and maximization of benefits for
taxpayers.” It gives a clear mandate that the Treasury Secretary must consider the burdens and benefits to taxpayers
in assessing initial outlays as well as potential long-term returns and economic benefits.
529
In the bankruptcy proceedings for Chrysler and GM, (i) “Old Chrysler” sold substantially all of its assets
to “New Chrysler” and (ii) “Old GM” sold substantially all of its assets to “New GM,” each pursuant to Section 363
of the United States Bankruptcy Code. For purposes of simplicity, I generally refer to these entities as “Chrysler” or
“GM,” but occasionally employ other terms as appropriate.
530
In a written response to the Panel the Administration stated:
150
States government choose to reward two companies that have been arguably mismanaged for
many years at the expense of other hardworking taxpayers?531 More poetically, The New York
Times on July 25 asked: “Why, after all, should the automakers receive the equivalent of a
Technicolor dreamcoat, giving them favorite-son status, when other industries, like airlines and
retailers, also have suffered from the national recession?” More bluntly, the September 2009
issue of The Atlantic simply cut to the bottom line: “Essentially, the government was engineering
a transfer of wealth from TARP bank shareholders to auto workers, and pressuring other
creditors to go along.”532 The Chrysler and GM reorganizations represent a sad day for the rule
Outright failure of GM and Chrysler would likely have led to uncontrolled liquidations in the
automotive industry, with widespread devastating effects. Importantly, the repercussions of such
liquidations could have included immediate and long-term damage to the U.S.
manufacturing/industrial base, a significant increase in unemployment with direct harm to those
both directly and indirectly related to the auto sector (e.g., dealerships being shuttered, plant
closings, supplier failures, service centers closing, etc.), and further damaged our financial system,
as automobile financing accounts for a material portion of our overall financial activity.
Under the direction of the President, the Administration sought to avoid such disruptions to the
financial system and the economy as a whole by providing the minimum capital necessary to these
companies to facilitate their restructurings. Prior to advancing new funds, the Administration has
relied on commercial principles in determining the viability of these businesses and in structuring
the terms of its investments.
The President's March 30th, April 30th, and June 1st speeches detail the rationale for further
investments in the companies.
Unfortunately, the Administration‟s response does not address how the $81 billion allocated to the auto
programs could have been spent to assist other American taxpayers, including small businesses.
531
In a written response to the Panel neither Chrysler nor GM acknowledged that by rescuing the two
distressed and arguably mismanaged automakers the United States government chose not to assist other American
taxpayers.
Chrysler response:
Please refer to (1) the materials submitted to the U.S. Congress by Chrysler LLC on December 2,
2008, (2) the Restructuring Plan for Long-Term Viability submitted by Chrysler LLC to the U.S.
Treasury on February 17, 2009, and (3) the testimony and supporting materials from Chrysler LLC
and its advisors that are part of the public record in the bankruptcy proceedings of Chrysler LLC
pending in the U.S. Bankruptcy Court for the Southern District of New York. These public
materials provide comprehensive information detailing the sudden and drastic effects of the global
credit crisis on the U.S. auto industry, the potential disastrous effects on the U.S. economy of a
liquidating bankruptcy of Chrysler, and the potential for the new Chrysler to preserve tens of
thousands of jobs and generate billions of dollars of federal, state and local tax revenues in the U.S.
GM response:
The government‟s provision of debtor-in-possessing financing when none was available in the
private market, along with its other support for General Motors, enabled the company to go
through bankruptcy without liquidation. As Mr. McAlinden testified, the government‟s actions
probably avoided millions of job losses and billions of dollars of lost income and lost tax revenue.
These millions of taxpayers, along with the state and local governments which their taxes support,
benefited substantially from the government‟s involvement. Beyond this, the soundness of the
government‟s investment will only be proved out over time.
532
See “The Final Days of Merrill Lunch,” The Atlantic, September 2009, at
www.theatlantic.com/doc/200909/bank-of-america.
151
of law, the sanctity of commercial law principles and contractual rights, long term economic
growth, and the ideal that the United States government should not pick winners and losers.
Given the unorthodox reordering of the rights of the Chrysler and GM creditors, a
fundamental question arises as to whether the Administration directed that TARP funds be used
to advance its economic, social and political objectives rather than to stabilize the American
economy as required by EESA. It has long been my view that the United States government
should not engage in the business of picking winners and losers and certainly should not allocate
its limited resources to favor one group of taxpayers over another. Following the Chrysler and
GM bankruptcies one has to question what‟s next in the Administration‟s playbook – a bailout of
the airline industry and its unionized workforce? What about Starbucks?
2. Transfer of TARP Proceeds and Retirement Saving of Indiana School Teachers
and Police Officers to the UAW and the VEBAs
On a “before” v. “after” basis the Chrysler and GM bankruptcy cases make little legal or
economic sense.533 How is it possible that the Chrysler and GM VEBAs534 – unsecured creditors
533
The Chrysler and GM bankruptcy rearranged the rights of the creditors and equity holders as follows:
Chrysler. Pursuant to the Chrysler bankruptcy, the equity of New Chrysler was allocated as follows:
(i) United States government (9.846% initially, but may decrease to 8%),
(ii) Canadian government (2.462% initially, but may decrease to 2%),
(ii) Fiat (20% initially, but may increase to 35%), and
(iii) UAW (comprising current employee contracts and a VEBA for retired employees) (67.692%, but may
decrease to 55%).
The adjustments noted above permit Fiat to increase its ownership interest from 20% to 35% by achieving
specific performance goals relating to technology, ecology and distribution designed to promote improved fuel
efficiency, revenue growth from foreign sales and US based production.
Some, but not all, of the claims of the senior secured creditors were of a higher bankruptcy priority than the
claims of the UAW/VEBA.
The Chrysler senior secured creditors received 29 cents on the dollar ($2 billion cash for $6.9 billion of
indebtedness).
The UAW/VEBA, an unsecured creditor, received (x) 43 cents on the dollar ($4.5 billion note from New
Chrysler for $10.5 billion of claims) and (y) a 67.692% (which may decrease to 55%) equity ownership interest in
New Chrysler.
GM. Pursuant to the GM bankruptcy, the equity of New GM was allocated as follows:
(i) United States government (60.8%),
(ii) Canadian government (11.7%),
(iii) UAW (comprising current employee contracts and a VEBA for retired employees) (17.5%), and
(iv) GM bondholders (10%).
The bankruptcy claims of the UAW/VEBA and the GM bondholders were of the same bankruptcy priority.
152
– received a greater allocation of proceeds than the Chrysler senior secured creditors or the GM
bondholders? In other words, why did the United States government spend tens of billions of
dollars of taxpayer money to bail out employees and retirees of the UAW to the detriment of
other non-UAW employees and retirees – such as retired school teachers and police officers from
the State of Indiana535 – whose pension funds invested in Chrysler and GM indebtedness?536
The equity interest of the UAW/VEBA and the GM bondholders in New GM may increase (with an
offsetting reduction in each government‟s equity share) to up to 20% and 25%, respectively, upon the satisfaction of
specific conditions. It is important to note, however, the warrants received by the UAW/VEBA and the GM
bondholders are out of the money and it‟s possible they will not be exercised. As such, it seems likely that the
UAW/VEBA and the GM bondholders will hold 17.5% and 10%, respectively, of the equity of New GM.
The GM bondholders exchanged $27 billion in unsecured indebtedness for a 10% (which may
increase to 25%) common equity interest in New GM, while the UAW/VEBA exchanged $20
billion in claims for a 17.5% (which may increase to 20%) common equity interest in New GM
and $9 billion in preferred stock and notes in New GM.
534
The Chrysler and GM VEBAs (voluntary employee benefit associations) administer and fund the health
and retirement plans of Chrysler and GM retirees.
535
The Chrysler senior secured debt and the GM bonds were held by pension funds (for the benefit of
retirees such as the Indiana school teachers and police officers), individuals (including the retirees who have
contacted my office to ask why they lost their savings but UAW employees benefited) as well as different types of
business entities.
Mr. Richard E. Mourdock, the Indiana State Treasurer tirelessly challenged the Administration‟s attempt to
abrogate commercial and contractual law principles in the Chrysler Section 363 sale on behalf of, among others,
pension funds for retired Indiana school teachers and police officers.
Mr. Mourdock has not conceded the match and on September 3, 2009 filed a Petition for Writ of Certiorari
with the United States Supreme Court on behalf of the Indiana pension funds for retired school teachers and police
officers. The Petition may be found at www.in.gov/tos/files/In_re_Chrysler_LLC_Cert__Petition.pdf.
The Petition (at page i) asks the Court to consider the following question:
Chrysler‟s first lien lenders received a liquidation based recovery while unsecured creditors
received over $20 billion of going-concern value in cash, new notes and stock from the
reorganized business. Affirming, the Second Circuit declared that “[t]he „side door‟ of § 363(b)
may well „replace the main route of chapter 11 reorganization plans.”
The question presented is whether section 363 may freely be used as a “side door” to reorganize a
debtor‟s financial affairs without adherence to the creditor protections provided by the chapter 11
plan confirmation process.
The Petition (at pages 37-39) argues:
Regardless of its outcome, the Chrysler bankruptcy carries profound implications for the Nation‟s
economy. Going forward, nearly everyone will feel the impact, from auto workers and suppliers
to pensioners and bondholders to unrelated companies who hope to raise money through the sale
of secured debt in the future. This is all the more true because this case is but one of the most
extreme manifestations of an increasingly common occurrence – the use of a section 363 sale to
bypass the chapter 11 plan confirmation process.
With these results, it is hard to imagine why other companies facing mounting debt and possible
bankruptcy would not take this path, even without Government financing. See Roe & Skeel,
supra, at 26 (“a coalition of creditors, managers, and (maybe) shareholders could present a § 363
„plan‟ to the court for approval, and the plan could squeeze out any creditor class.”); see also
Micheline Maynard, Automakers‟ Swift Cases in Bankruptcy Shock Experts, N.Y. Times, July 6,
153
Chrysler and GM were restructured with taxpayer money, that is, funds from the TARP. After
New Chrysler and New GM purchased the assets of the old auto makers, it‟s relatively clear that
the new entities had little choice but to enter into collective bargaining agreements with the
UAW – the companies needed workers. But what‟s not clear is why the new entities transferred
a substantial amount of equity to the VEBAs of New Chrysler and New GM.
Do the Administration and the UAW/VEBAs expect the American people to believe that
the UAW employees would have refused to work for New Chrysler and New GM without
receiving “the equivalent of a Technicolor dreamcoat”? I suspect the employees would have
2009 (“For businesses that follow similar legal strategies, the G.M. and Chrysler cases could pave
the way for a faster trip through court.”).
Any struggling company could, after having made side deals with its favorite creditors or equity
holders that the bankruptcy court imposes on other potential bidders, use section 363 to “sell” its
valuable assets to a shell company at a deflated price, and in so doing eliminate all of its other debt
obligations.
The high profile of this case and the extremes to which the courts below went to bless the Chrysler
sale have shone a light on issues critical to many bankruptcy cases and the capital markets. There
can be little doubt that these issues demand the Court‟s attention. There will be no better chance
to address them than this, the case that most profoundly presents them; and there will be no better
time to review them than now, when the urgency of an impending sale has passed and there is time
for cool reflection about the implications of what has transpired.
The Petition (at pages 40-42) seeks the following relief:
The Indiana Pensioners, however, do not seek to unwind that sale by this appeal, and section
363(m), by its express terms, contemplates that a sale order can be reversed – even where a sale
has been consummated – so long as “a remedy can be fashioned that will not affect the validity of
the sale.”
The Second Circuit itself has observed that it is not “clear why an appellate court, considering an
appeal from an unstayed but unwarranted order of sale to a good faith purchaser, could not order
some form of relief other than invalidation of the sale.
Such is the case here, where the Indiana Pensioners seek reversal of the Transaction Orders only to the
extent that the distribution of proceeds was inequitable. The effect of those unwarranted orders could be
remedied without disturbing the validity of the sale to New Chrysler, for example, by compelling the
VEBA and the UAW to return to the bankruptcy estate the $4.6 billion note and common stock that they
received under the transaction to be properly distributed pursuant to a chapter 11 plan of reorganization.
536
The President directed the auto team to take a commercial approach to the restructuring process of
these companies. As a result, the Administration dealt with the various creditors to GM/Chrysler
as a commercial actor would. The final division of debt, preferred, and equity securities between
the various creditors was the result of arm's length negotiations.
The UAW/VEBA had many billions of dollars of claims and labor agreements governing the
companies‟ active workforces. As part of this process the Union agreed to major modifications in
their labor agreements. Under the new contracts, the VEBA received a stake in the reorganized
companies without any immediate payment. The cooperation and support of the UAW is essential
to the ability of the reorganized companies to succeed.
This response carefully avoids the fundamental issue – why were the UAW/VEBAs preferred to the
Indiana school teachers and police officers, among other creditors?
154
been grateful for a job at a decent wage even if the VEBAs had “only” received proceeds in
accordance with commercial law principles and the contractual expectations of the various
bankruptcy claimants. Yes, I appreciate that Old Chrysler and Old GM owed substantial sums to
their respective VEBAs and, yes, I agree that the claims should have been paid in full, but, no, I
do not concur that the VEBAs should have received a windfall at the expense of Indiana school
teachers and police officers and the other creditors of Old Chrysler and Old GM. The “company
needs skilled workers” defense only goes so far given the adverse economic conditions affecting
American manufacturing these days. Such an excuse cannot be used to obfuscate the transfer of
taxpayer-sourced TARP funds to a favored political constituency.
If you trace the funds, TARP money was employed by New Chrysler and New GM to
purchase assets of the old auto makers, yet a substantial portion of the equity in the new entities
was transferred to the VEBAs and, thus, not retained for the benefit of the American taxpayers
(who funded the TARP) or shared with other creditors of Old Chrysler and Old GM.
Accordingly, it‟s hardly a stretch to conclude that TARP funds were transferred to the UAW and
the VEBAs after being funneled through New Chrysler and New GM. In addition, New Chrysler
and New GM entered into promissory notes and other contractual arrangements for the benefit of
the VEBAs, but not for the benefit of the other creditors of Old Chrysler and Old GM. Why did
the United States government – the controlling shareholder of New Chrysler and New GM –
direct New Chrysler and New GM to make an exclusive gift of taxpayer funds to the VEBAs?
Why didn‟t New Chrysler and New GM transfer more of their equity interests to the creditors of
Old Chrysler and Old GM? Why were Indiana school teachers and police officers and other
investors in the Chrysler senior secured indebtedness and the GM bonds in effect forced by the
Administration to transfer a portion of their claims against Chrysler and GM, respectively, to the
UAW and the VEBAs? That is, why did the Administration orchestrate two bankruptcy plans
whereby one group of employees and retirees was preferred to another?
Over the past two weeks the Administration has undertaken to educate the Panel
regarding the due diligence investigation undertaken by the Auto Task Force and its advisors
with respect to the Chrysler and GM transactions. That Mr. Bloom and the CBO now believe the
American taxpayers may lose part of their TARP investments in the auto industry seems to
negate both the seriousness and the effectiveness of any due diligence undertakings. I have little
doubt that many detailed memos were prepared and that a multitude of attorneys, CPAs and
other advisors worked long hours producing prodigious due diligence files. But to what purpose
were these efforts directed? How is it possible that the Administration – based upon its putative
due diligence – invested $81 billion in the auto industry only to discover less than three months
later that it overinvested and may suffer substantial losses? What intervening event occurred to
cause such a loss in value? Absence total incompetence on behalf of Treasury and its advisors –
a theory I do not accept – only one answer follows – the Administration was determined to bail
out the auto industry and the UAW/VEBAs regardless of the cost to the American taxpayers and
the due diligence undertakings served as nothing more than expensive window dressing.
155
3. Messages to Non-UAW Employees and the Financial Markets
What message does the Chrysler and GM holdings send to non-UAW employees whose
pension funds invested in Chrysler and GM indebtedness – you lose part of your retirement
savings because your pension fund does not have the special political relationships of the UAW?
What message does the Chrysler and GM bankruptcies send to the financial markets –
contractual rights of investors may be ignored when dealing with the United States government?
In written testimony submitted to the Panel, Barry E. Adler, Professor of Law and
Business at New York University, noted:
There are at least two negative consequences from the disregard of creditor rights.
First, at the time of the deviation from contractual entitlement, there is an
inequitable distribution of assets. Take the Chrysler case itself, where the
approved transaction well-treated the retirement funds of the UAW. If such
treatment deprived the secured creditors of their due, one might well wonder why
the UAW funds should be favored over other retirement funds, those that invested
in Chrysler secured bonds. Second, and at least as importantly, when the
bankruptcy process deprives a creditor of its promised return, the prospect of a
debtor‟s failure looms larger in the eyes of future lenders to future firms. As a
result, given the holding in Chrysler, and the essentially identical holding in the
General Motors case, discussed next, one might expect future firms to face a
higher cost of capital, thus dampening economic development at a time when the
country can least well afford impediments to growth.
In a recent article analyzing the Chrysler and GM bankruptcies, Mark J. Roe and David
A. Skeel, Professors of Law at Harvard University and the University of Pennsylvania,
respectively, noted:
Warren Buffett worried in the midst of the reorganization that there would be “a
whole lot of consequences” if the government‟s Chrysler plan emerged as
planned, which it did. If priorities are tossed aside, as he implied they were,
“that‟s going to disrupt lending practices in the future.” “If we want to encourage
lending in this country,” Buffett added, “we don‟t want to say to somebody who
lends and gets a secured position that the secured position doesn‟t mean
anything.”537
In a recent Op-Ed in The Wall Street Journal, Todd J. Zywicki, Professor of Law at
George Mason University, noted:
537
Roe, Mark J. and Skeel, David A., Assessing the Chrysler Bankruptcy (August 12, 2009). U of Penn
Law School, Public Law Research Paper No. 09-17; U of Penn, Inst for Law & Econ Research Paper No. 09-22.
Available at SSRN: ssrn.com/abstract=1426530.
156
By stepping over the bright line between the rule of law and the arbitrary behavior
of men, President Obama may have created a thousand new failing businesses.
That is, businesses that might have received financing before but that now will
not, since lenders face the potential of future government confiscation. In other
words, Mr. Obama may have helped save the jobs of thousands of union workers
whose dues, in part, engineered his election. But what about the untold number of
job losses in the future caused by trampling the sanctity of contracts today? 538
In the September 2009 issue of The Atlantic, William D. Cohan notes:
The rules as to how the government will act are not what we learned,” explained
Gary Parr, the deputy chairman of Lazard and one of the leading mergers-andacquisitions advisers to financial institutions. “In the last 12 months, new
precedents have been set weekly. The old rules often don‟t apply as much
anymore.” He said the recent examples of the government‟s aggression are “a
really big deal,” but adds, “I am not sure it is going to last a long time. I sure
hope not. I can‟t imagine the markets will function properly if you are always
wondering if the government is going to step in and change the game.539
In his testimony before the Judiciary Committee of the United States House of
Representatives on May 21, 2009, Andrew M. Grossman, Senior Legal Policy Analysts, The
Heritage Foundation, stated:
Also detrimental to General Motors and Chrysler is the difficulty that they will
have accessing capital and debt markets. Lenders know how to deal with
bankruptcy – it's a well understood risk of doing business. But the tough
measures employed by the Obama Administration to cram down debt on behalf of
the automakers were unprecedented and will naturally make lenders reluctant to
do business with these companies, for fear they could suffer the same fate. Even
secured and senior creditors, those who forgo higher interest rates to protect
themselves against risks, suffered large, unexpected losses. So nothing that either
company can offer, no special status or security measure, can fully assuage
lenders' fears that, in an economic downturn, they could be forced to accept far
less than the true value of their holdings. At best, if General Motors and Chrysler
have access to debt markets at all, they will have to pay dearly for the privilege.
At worst, even high rates and tough covenants will not be enough to attract
interest.
The Obama Administration's transparent favoritism toward its political supporters
in the United Auto Workers Union may lead other unions to demand the same:
538
The Wall Street Journal, May 13, 2009, at online.wsj.com/article/SB124217356836613091.html.
539
157
hefty payouts and ownership stakes in exchange for halfhearted concessions.
Lenders know now that the Administration is unable to resist such entreaties. As
one hedge fund manager observed, "The obvious [lesson] is: Don't lend to a
company with big legacy liabilities, or demand a much higher rate of interest
because you may be leapfrogged in bankruptcy."
Perhaps the most affected will be faltering corporations and those undergoing
reorganization – that is, the enterprises with the greatest need for capital. Lending
money to a nearly insolvent company is risky enough, but that risk is magnified
when bankruptcy ceases to recognize priorities or recognize valid liens. With
private capital unavailable, larger corporations in dire straits will turn to the
government for aid – more bailouts – or collapse due to undercapitalization, at an
enormous cost to the economy.
Financial institutions – enterprises that the federal government has already spent
billions to strengthen – will also be affected. Many hold debt in domestic
corporations that could be subject to government rescue, rendering their
obligations uncertain. It is that uncertainty which transforms loans into
impossible-to-value toxic assets and blows holes in balance sheets across the
economy.
Finally, there are the investors, from pension funds and school endowments to
families building nest eggs for their future. General Motors bonds, like the debt
of other long-lived corporations, has been long regarded as a refuge from the
turmoil of equity markets. The once-safe investment held directly by millions of
individuals and indirectly, though funds and pensions, by far more, are now at
risk, which will be reflected in those assets' values.540
4. The use of TARP Funds in the Chrysler and GM Bankruptcies
As part of its review of auto industry TARP financing, the Panel must investigate
Treasury‟s rationale for using funding from a program intended to prevent systemic meltdown in
the financial sector to support failing automakers. Section 101(a)(1) of the EESA states that:
The Secretary [of the Treasury] is authorized to…purchase, and to make and fund
commitments to purchase, troubled assets from any financial institution, on such
terms and conditions as are determined by the Secretary, and in accordance with
this Act and the policies and procedures development and published by the
Secretary. [emphasis added.]
540
Andrew M. Grossman, Senior Legal Policy Analyst, The Heritage Foundation, “Bailouts, Abusive
Bankruptcies, And the Rule of Law,” Testimony before the Judiciary Committee of the United States House of
Representatives, May 21, 2009, at www.heritage.org/Research/Economy/tst052209a.cfm..
158
A plain reading of the statute would necessarily preclude the employment of TARP funds
for the benefit of the auto industry because, among other reasons, neither Chrysler nor GM
qualifies as a “financial institution.” If Chrysler and GM are somehow deemed to qualify as
“financial institutions,” then what business enterprise will fail to so qualify? If Congress had
intended for TARP to cover all business enterprises it would not have incorporated such a
restrictive term as “financial institution” into EESA.
Further, a funding bill specifically aimed at assisting the auto industry was not approved
by Congress. Nevertheless, the Bush Administration extended credit to Chrysler and GM and
the Obama Administration orchestrated the Chrysler and GM bankruptcies which resulted in an
investment of over $81 billion in the auto industry.
Since the authority for such an investment remains unclear, I request that the
Administration provide the Panel with a formal written legal opinion justifying:541
(i) the use of TARP funds to support Chrysler and GM prior to their bankruptcies;
541
The Treasury described the authority to use TARP funds to finance the old Chrysler and GM in bankruptcy
court filings made on its behalf by the Department of Justice, specifically in the Statement of the United States of
America Upon The Commencement of General Motors Corporation‟s Chapter 11 Case filed June 10, 2009, a copy
of which has been provided to the Panel. In Judge Gerber‟s final sale order in the GM bankruptcy case dated July 5,
2009, also provided to the Panel, he wrote:
The U.S. Treasury and Export Development Canada (“EDC”), on behalf of the Governments of
Canada and Ontario, have extended credit to, and acquired a security interest in, the assets of the
Debtors as set forth in the DIP Facility and as authorized by the interim and final orders approving
the DIP Facility (Docket Nos. 292 and 2529, respectively). Before entering into the DIP Facility
and the Loan and Security Agreement, dated as of December 31, 2008 (the “Existing UST Loan
Agreement”), the Secretary of the Treasury, in consultation with the Chairman of the Board of
Governors of the Federal Reserve System and as communicated to the appropriate committees of
Congress, found that the extension of credit to the Debtors is “necessary to promote financial
market stability,” and is a valid use of funds pursuant to the statutory authority granted to the
Secretary of the Treasury under the Emergency Economic Stabilization Act of 2008, 12 U.S.C. §§
5201 et seq. (“EESA”). The U.S. Treasury‟s extension of credit to, and resulting security interest
in, the Debtors, as set forth in the DIP Facility and the Existing UST Loan Agreement and as
authorized in the interim and final orders approving the DIP Facility, is a valid use of funds
pursuant to EESA.
The rationale and determination of the ability to use TARP funds applies equally to the financing
provided to the new Chrysler. There was no new financing provided to New GM. Instead, cash
flowed from old GM to new GM as part of the asset sale, and new GM assumed a portion of the
loan that Treasury had made to old GM.
The interests received by other stakeholders of Chrysler and GM including the UAW/VEBAs
were a result of negotiations between all stakeholders as described in detail by myself and Harry
Wilson in our depositions in the bankruptcy cases, transcripts of which have been provided to the
Congressional Oversight Panel.
I find the response unhelpful and ask the Administration to provide a formal written legal opinion
supporting its position. Since Congress specifically rejected the bailout of Chrysler and GM, under what theory and
precedent did the Executive unilaterally invest $81 billion in these non-financial institutions?
159
(ii) the use of TARP funds in the Chrysler and GM bankruptcies;
(ii) the transfer of equity interests in New Chrysler and New GM to the UAW/VEBAs;
and
(iii) the delivery of notes and other credit support by New Chrysler and New GM for the
benefit of the UAW/VEBAs.542
5. How the Chrysler and GM Bankruptcies Have Been Received by Bankruptcy
Scholars
A number of bankruptcy law academics at top-tier law schools have questioned the
Chrysler and GM bankruptcies. In the Chrysler and GM proceedings, Section 363 of the United
States bankruptcy code was used by the Administration to upset well established commercial law
principles and the contractual expectations of the parties. As Professors Adler, Roe and Skeel
note, the Chrysler and GM bankruptcy courts required each Section 363 bidder to assume certain
obligations of the UAW/VEBAs as part of its bid. This means that potential purchasers could
not simply acquire the assets free and clear of the liabilities of the seller, but, instead, were also
required to assume certain of those liabilities. This requirement most likely chilled the bidding
process and precluded the determination of the true fair market value of the assets held by
Chrysler and GM. By disrupting the bidding process it‟s entirely possible that TARP proceeds
were misallocated away from the Chrysler senior secured creditors and the GM bondholders to
the UAW/VEBAs. Although I do not concur that EESA authorized the use of TARP proceeds in
the Chrysler and GM bailouts, it‟s nevertheless important to follow the TARP funds once they
were committed.
A summary of the analysis of Professors Adler, Roe, Skeel and Lubben as well as a set of
examples are included in an Annex to these Dissenting Views. The examples illustrate how the
Administration manipulated Section 363 of the bankruptcy code to achieve its economic, social
and political objectives at the expense of the American taxpayers and the Chrysler senior secured
creditors and GM bondholders.
6. Pressure on TARP Recipients and a Higher Standard of Conduct for the United
States Government
The technical bankruptcy laws issues illustrated in the Annex are exacerbated because the
winning purchaser in the Chrysler and GM cases – entities directly or indirectly controlled by the
United States government – had virtually unlimited resources, which is certainly not the case in
542
The promissory notes issued to the UAW/VEBAs are senior to the equity issued to the United States
government. Since the government controlled New Chrysler and New GM at the time the notes were issued, it‟s
apparent that the government agreed to subordinate the TARP claims held by the American taxpayers to the claims
held by the UAW/VEBAs. What was the purpose of the subordination except perhaps to prefer the claims of a
favored class over the claims of the taxpayers who funded the TARP program?
160
typical private equity transactions. The matter becomes particularly muddled when you consider
that a majority in interest of the Chrysler senior secured debt was held by TARP recipients at a
time when there was much talk in the press about "nationalizing" some or all of these
institutions. It is not difficult to imagine that these recipients felt direct pressure to “get with the
program” and support the Administration‟s proposal.543
In addition, the United States government should have held itself to a higher standard of
conduct. This was not the time for brass-knuckles negotiating tactics where, yes, the rights of
UAW employees and retirees were ultimately preferred to the rights of retired Indiana school
teachers and police officers–notwithstanding the priority of their respective contractual claims
under well accepted commercial law principles. That the United States government was part of
the process–in fact, the driving force in the process–is distressing. Through the clever use of
Section 363 of the bankruptcy code an ultra-wealthy and sophisticated party–the United States
government–orchestrated and rammed-through a plan whereby a politically favored class of
creditors–the UAW and the VEBAs–prevailed to the detriment and disenfranchisement of
another class of creditors–retired Indiana school teachers and police officers, among others.
Based upon the analysis of Professors Adler, Roe and Skeel, the bankruptcy courts
should have called a time-out and changed the bidding procedure (i.e., no assumption of
liabilities required), extended the time to submit a bid544 and applied the protections afforded
543
TARP recipients who were also Chrysler senior secured creditors included Citigroup, JP Morgan Chase,
Morgan Stanley and Goldman Sachs.
See “Dissident Chrysler Group to Disband,” The New York Times, May 8, 2009, at
dealbook.blogs.nytimes.com/2009/05/08/oppenheimer-withdraws-from-dissident-chryslergroup/?scp=1&sq=TARP%20lender%20Chrysler%20pressure&st=cse. The article provides:
After a great deal of soul-searching and quite frankly agony, Chrysler‟s non-TARP lenders
concluded they just don‟t have the critical mass to withstand the enormous pressure and
machinery of the US government,” Thomas E. Lauria, a partner of Mr. Kurtz‟s and the lead lawyer
for the group. “As a result, they have collectively withdrawn their participation in the court case.”
With the group‟s disbanding, a little over a week since it made itself public, a vocal obstacle to
Chrysler‟s reorganization has subsided. The committee‟s membership has shrunken by the day as
it faced public criticism from President Obama and others. That continued withdrawal of firms led
Oppenheimer and Stairway to conclude that they could not succeed in opposing the Chrysler
reorganization plan in court, the two firms said in separate statements.
In its first public statement last week, the ad hoc committee said that it consisted of about 20 firms
holding $1 billion in secured debt. But hours after Mr. Obama criticized the firms as
“speculators,” the group lost its first major member, Perella Weinberg Partners, which changed its
mind and signed onto the Chrysler plan.
544
Mr. Richard E. Mourdock, the Indiana State Treasurer, whose pension funds invested in Chrysler senior
secured indebtedness, provided the following testimony to the Panel:
The principal restriction was imposed by the time requirement that mandated the bankruptcy be
completed by June 15, 2009. Throughout the bankruptcy process, the government maintained if
the deal was not completed by that date that Fiat would walk away from its “purchase” of 20% of
the Chrysler assets. From the beginning, the June 15 date was a myth generated by the federal
government. Fiat was being given the assets at no cost at a minimum value of $400,000,000. Why
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under the Chapter 11 reorganization rules. With those changes the judicial holdings would have
most likely appeared fair and reasonable and could have served as a model for highpressure bankruptcies that followed. Without such changes, however, the process was inherently
flawed because we will never know if another bidder would have paid more for the gross assets
(without the assumption of any liabilities) of Chrysler or GM.545 As intentionally structured by
the Administration, the bidding procedures ultimately adopted for the Section 363 sales
necessarily precluded the determination of the true fair market value of the assets held by
Chrysler and GM. Without such determination, the appropriateness of the price paid for the
assets of Old Chrysler and Old GM as well as the appropriateness of the distribution made by
Old Chrysler and Old GM to the Chrysler senior secured creditors and GM bondholders will
remain in doubt.
7. “Political Risk” in American Business
I anticipate that the Chrysler and GM holdings will not age well as more corporate and
commercial law attorneys, hedge and private equity fund managers and corporate finance
officers learn of their intricacies. As previously noted, many bankruptcy scholars believe the
cases were ill considered. This process will take some time to mature, but counsel will certainly
add a "political risk" section to their diligence check-lists and businesspersons will price their
deals accordingly.
I am troubled that the private sector must now consider incorporating the concept of
“political risk” into its analysis before engaging in any direct or indirect transaction with the
would Fiat establish or negotiate such a date when they were to receive such a bonanza? On the
very day that the Chrysler assets were transferred to Fiat, the company‟s chairman stated to the
media that the June 15th date never originated from them. The artificial date drove the process in
preventing creditors from having any opportunity to establish true values, prepare adequate cases,
and therefore failed to protect their rights to the fullest provisions of the law. The artificial date
also forced the courts to act with less than complete information.
The U.S. [Second Circuit] Court of Appeals in its written opinion of August 9 th, 2009, denied our
pensioners standing pursuant to the argument that we could not prove, under any other bankruptcy
plan, we could have received more than the $0.29 we were offered. We believe this was an error
because the court used a liquidation value for the company rather than an „on-going concern‟
basis. We received written notice from the U.S. Bankruptcy Court of New York by certified letter
of our rights to file a claim on Monday, May 18, 2009, at 10:00 a.m. We were advised in the letter
that any evidence we wished to submit to make a claim against the submitted plan, (in part, the
$0.29), would have to include trade tickets, depositions, affidavits, documents of evidence to
substantiate claims, and etc. and would have to be filed with the bankruptcy court on Tuesday,
May 19, 2009, by 4:00p.m. The bankruptcy of Chrysler was frequently referred to as “the most
complex bankruptcy in American history,” and yet we were given thirty hours to respond. We feel
this was clearly an error in the process that helped to reduce the wealth of our beneficiaries.
545
It‟s also important to note that for these purposes it‟s irrelevant if certain Chrysler or GM creditors
happened to have purchased their securities at a cheap price. Who cares? The substantive legal issue concerns
whether their contractual rights were honored. Courts should not abrogate well established commercial law
principles and contractual expectations simply because an investor has earned a “reasonable return” on its
investment. That's not the rule of law, but the law of political expediency.
162
United States government. While private sector participants are accustomed to operating within
a complex legal and regulatory environment, many are unfamiliar with the emerging trend of
public sector participants to bend or restructure rules and regulations so as to promote their
economic, social and political agenda as was clearly evident in the Chrysler and GM
bankruptcies. The realm of political risk is generally reserved for business transactions
undertaken in developing countries and not interactions between private sector participants and
the United States government. Following the Chrysler and GM decisions it is possible that
private sector participants may begin to view interactions with the United States government
through the same jaundiced eye they are accustomed to directing toward third-world
governments. It‟s disingenuous for the Administration to champion transparency and
accountability for the private sector but neglect such standards when conducting its own
affairs.546 How is it possible for directors and managers of private sector enterprises to discharge
their fiduciary duties and responsibilities when policy makers legislate and regulate without
respect for precedent and without thoughtfully vetting the unintended consequences of their
actions?
8. Management Decisions by the Federal Government
The President, in his June 1, 2009 remarks on the forthcoming bankruptcy of GM, called
the government a “reluctant” shareholder that will “take a hands-off approach, and get out
quickly.”547 Questions still remain on exactly the level of the Administration‟s involvement in
operational decisions. If the Auto Task Force‟s conduct during the unique bankruptcies of
Chrysler and GM is any indication of a heavier-handed approach to come, the Panel should
carefully follow the taxpayer‟s TARP investment in the auto industry very closely.
For example, in an April 2009 interview with NPR, Environmental Protection Agency
Administrator Lisa Jackson said the following:
Jackson: "The President has said and I couldn't agree more that what this country needs
is one single national road map that tells auto makers who are trying to become solvent
again, what kind of car it is they need to be designing and building for the American
people."
NPR reporter (interrupting): "Is that the role of the government, though? I mean that
doesn't sound like free enterprise."
Jackson: "Well...it is free enterprise in a way...you know, first and foremost the free
546
I have little doubt that the tepid response from the private sector regarding the Term Asset-Backed
Securities Loan Facility (TALF) and the Public-Private Investment Partnership (PPIP) programs is attributable in
significant part to the political risk issue.
547
See the following speech: www.whitehouse.gov/the_press_office/Remarks-by-the-President-onGeneral-Motors-Restructuring/.
163
enterprise system has us where we are right this second...and so some would argue that
the government already has a much larger role than we might have when Henry Ford
rolled the first cars off the assembly line."548
Lately, the Administration‟s policy goals have been explicit in its contractual dealings.
At the government‟s discretion, Fiat may increase its ownership stake in Chrysler to 35 percent
if, among other performance goals, it builds a car that gets 40 miles per gallon or more in the
U.S.549 What does this requirement have to do with stabilizing the American economy as
required by EESA? Will the Administration demand any other specifications from Fiat or any
other party, including Chrysler or GM? If so, how will these requirements correlate with the
EESA mandate? It is also worth noting that in the latest United Kingdom JD Power survey, Fiat
ranks last in overall satisfaction rankings (28th out of 28), which, according to one trade
magazine, “is a roundabout way of saying Fiat's car's aren't exactly renowned for their reliability
in Europe…”550 Will the Auto Task Force require that Chrysler and GM produce and sell certain
types of vehicles, even if demand for them is weak or reliability and performance are poor?
Below, I discuss several recommendations for the Panel to follow in discharging its duty
to provide proper oversight for the Administration‟s financing of the auto industry. It is
especially important that the Panel ensure that the Administration match its actions with its
words and preclude its own day-to-day management decisions with respect to Chrysler and GM.
9. Recommendations for Investigations by SIGTARP
I request that SIGTARP promptly investigate the following three matters.
1. In the September 2009 issue, The Atlantic–hardly a bastion of the conservative
establishment–reported:
As the crisis has receded this year, the government has remained aggressive,
seeking business outcomes it finds desirable with some apparent indifference to
contractual rights. In Chrysler‟s bankruptcy negotiations in April, for example,
Treasury‟s plan offered the automaker‟s senior-debt holders 29 cents on the
dollar. Some debt holders, including the hedge fund Xerion Capital Partners,
believed they were contractually entitled to a much better deal as senior creditors
holding secured debt. But four TARP banks–JPMorgan Chase, Citigroup, Morgan
Stanley, and Goldman Sachs–which owned about 70 percent of the Chrysler
548
See the April 28, 2009 transcript of the interview between National Public Radio and Lisa Jackson at:
www.npr.org/templates/story/story.php?storyId=103582546.
549
See “Chrysler Said to Set Board Review of Models, Fiat Integration,” Bloomberg, August 28, 2009, at:
bloomberg.com/apps/news?pid=20601109&sid=ae_gNcQurQuA.
550
See “Fiat ranks last in UK JD Power survey, bodes poorly for Chrysler,” MotorAuthority, May 4, 2009,
www.motorauthority.com/blog/1033084_fiat-ranks-last-in-uk-jd-power-survey-bodes-poorly-forchrysler#comments.
164
senior debt at par (100 cents on the dollar), had agreed to the 29-cent deal. By
getting these banks and the other senior-debt holders to accept the 29-cent deal
and give up their rights to push for the higher potential payout they were entitled
to, the government could give Chrysler‟s workers, whose contracts were general
unsecured claims–and therefore junior to the banks‟–a payout far more generous
than would otherwise have been possible or likely. Essentially, the government
was engineering a transfer of wealth from TARP bank shareholders to auto
workers, and pressuring other creditors to go along.
A somewhat similar story played out during GM‟s bankruptcy – the government
again put together a deal that looked to many like a gift to the United Auto
Workers at the expense of bondholders, who were pressed hard to quickly take a
deal that would leave them with 10 percent of the equity of the reorganized
company (plus some out-of-the-money warrants) when they likely would have
been able to negotiate for more in a less well-orchestrated bankruptcy
proceeding.551 [emphasis added.]
551
The Atlantic article also includes the following observations:
On April 30, when President Obama announced the bankruptcy, he forcefully stated the White
House position: “While many stakeholders made sacrifices and worked constructively,” he said, “I
have to tell you, some did not. In particular, a group of investment firms and hedge funds decided
to hold out for the prospect of an unjustified taxpayer-funded bailout. They were hoping that
everybody else would make sacrifices, and they would have to make none. Some demanded twice
the return that other lenders were getting. I don‟t stand with them. I stand with Chrysler‟s
employees and their families and communities.”
In the face of this kind of political pressure, Perella Weinberg, the owner of Xerion, backed down.
“In considering the President‟s words and exercising our best investment judgment,” the firm said
in a statement, “we concluded that the risks of potentially severe capital loss that could arise from
fighting this in bankruptcy court far outweighed any realistic potential upside.” Tom Lauria, an
attorney who was representing the firm during the negotiations, said in a May 1 radio interview
that his client had been told by the administration that the White House press corps would destroy
Perella Weinberg‟s reputation if it continued to fight the deal. He later told ABC News that
Treasury adviser Steven Rattner had made the threat. (The White House denied making any
threats, and Perella Weinberg denied Lauria‟s account of events, without elaboration.) Lauria said,
in his radio interview, “I think everybody in the country should be concerned about the fact that
the president of the United States, the executive office, is using its power to try to abrogate that
contractual right.”
The Obama administration also famously browbeat AIG employees, who had a contractual right to
some $165 million in bonuses, to void that right. (In the face of the government‟s pressure and the
public outcry, some 15 of the top 20 recipients of the retention bonuses agreed to give back a total
of more than $30 million in payments.) Curiously, the government has put no pressure on Merrill
executives to return their $3.6 billion in bonuses that were paid out in December 2008, even
though the company had suffered those huge losses.
The rules as to how the government will act are not what we learned,” explained Gary Parr, the
deputy chairman of Lazard and one of the leading mergers-and-acquisitions advisers to financial
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If the Administration fails to submit a satisfactory formal written legal opinion justifying
its investment of TARP funds in Chrysler, GM and the other auto programs, I recommend that
SIGTARP undertake an investigation to determine:
(i) if the Administration inappropriately employed TARP funds in the Chrysler and GM
bankruptcies;
(ii) if the Administration inappropriately influenced the actions of any TARP recipient in
the Chrysler and GM bankruptcies;
(iii) if the Administration inappropriately engineered a “transfer of wealth from TARP
bank shareholders” to the UAW/VEBAs in the Chrysler and GM bankruptcies; and
(iv) if the Administration otherwise inappropriately orchestrated the transfer of TARP
funds to the UAW/VEBAs in the Chrysler and GM bankruptcies?
In conducting its investigation I recommend that SIGTARP subpoena the appropriate
parties and ask them to respond under oath.
2. Thomas E. Lauria, the Global Practice Head of the Financial Restructuring and
Insolvency Group at White & Case LLP, represented a group of senior secured creditors,
including the Perella Weinberg Xerion Fund (“Perella Weinberg”), during the Chrysler
bankruptcy proceedings.
On May 3, The New York Times reported:
In an interview with a Detroit radio host, Frank Beckmann, Mr. Lauria said that
Perella Weinberg „was directly threatened by the White House and in essence
compelled to withdraw its opposition to the deal under threat that the full force of
the White House press corps would destroy its reputation if it continued to fight.
In a follow-up interview with ABC News‟s Jake Tapper, he identified Mr.
[Steven] Rattner,552 the head of the auto task force, as having told a Perella
institutions. “In the last 12 months, new precedents have been set weekly. The old rules often
don‟t apply as much anymore.” He said the recent examples of the government‟s aggression are “a
really big deal,” but adds, “I am not sure it is going to last a long time. I sure hope not. I can‟t
imagine the markets will function properly if you are always wondering if the government is going
to step in and change the game.” One former Treasury official in the Bush administration told me
he believes that the Obama administration has been disturbingly heavy-handed with the
automobile companies and those who have lent to them. “It‟s very easy, when you‟re holding all
the cards, to impose your will,” he said. “And when you are the only source of financing, forget it.
552
For a further discussion of the interactions between Mr. Rattner and Perella Weinberg see:
“The Final Days of Merrill Lunch,” The Atlantic, September 2009, at
www.theatlantic.com/doc/200909/bank-of-america, and “Exit the Czar,” New York Magazine, August 2, 2009, at
nymag.com/news/features/58193/.
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Weinberg official that the White House „would embarrass the firm.‟” [emphasis
added.]
I recommend that SIGTARP undertake an investigation to determine if Mr. Rattner made
such statement to Mr. Lauria or Perella Weinberg.
In conducting its investigation I recommend that SIGTARP subpoena Mr. Rattner, Mr.
Lauria and representatives of Perella Weinberg and ask them to respond under oath. 553
Mr. Beckmann‟s interview with Mr. Lauria is available at
www.760wjr.com/article.asp?id=1301727&spid=6525. It‟s definitely worth taking a few
minutes to listen to Mr. Lauria.554
3. Regarding the reorganization of the auto parts manufacturer, Delphi, on July 17, The New
York Times reported:
Delphi‟s new proposal [reached with its lender group] is similar to its agreement
with Platinum [Equity, a private equity firm], which was announced June 1, the
day GM filed for bankruptcy. But hundreds of objectors, including the
company‟s debtor-in-possession lenders, derided that proposal as a “sweetheart
deal” that gave the private equity firm control of Delphi for $250 million and a
$250 million credit line. [emphasis added.]
On June 24, The New York Times reported that “Delphi worked with GM and the Obama
administration to negotiate with Platinum…”
I recommend that SIGTARP undertake an investigation to determine if the
Administration assisted with the negotiation of a “sweetheart deal” for the benefit of Platinum
Equity.
553
As [Mr. Bloom–the head of Treasury‟s Auto Task Force] testified during the July 27 Field
Hearing of the Congressional Oversight Panel, [he has] spoken to Mr. Rattner about this matter,
and he categorically denies Mr. Lauria‟s allegations. [Mr. Bloom has] no knowledge of any other
contact with Mr. Lauria or with people at Perella Weinberg regarding the issues mentioned above.
SIGTARP will determine the appropriate use of its subpoena power.
The response is not acceptable because the Administration has refused to conduct a proper due diligence
investigation of this matter by contacting Mr. Lauria and representatives of Weinberg Perella. I recommend that
SIGTARP promptly investigate this matter.
554
I have read reports to the effect that Perella Weinberg denied the veracity of the statements made by Mr.
Lauria. Perhaps that‟s true, but the press release issued by Perella Weinberg does no such thing. The press release
merely states that Perella Weinberg did not change “its stance on the Chrysler restructuring due to pressure from
White House officials,” which is entirely different from simply denying Mr. Lauria‟s statements. See The New York
Times, May 3, 2009, at dealbook.blogs.nytimes.com/2009/05/03/white-house-perella-weinberg-deny-claims-ofthreat-to-firm/#statement.
167
In conducting its investigation I recommend that SIGTARP subpoena the appropriate
parties and ask them to respond under oath.555
10. Additional Recommendations
I offer the following additional recommendations:
1. In order to end the abuses of EESA as evidenced by the Chrysler and GM bankruptcies
the TARP program must end. These bankruptcies clearly show that the program is
beyond capable oversight. Further, the TARP program should be terminated due to:

the desire of the American taxpayers for the TARP recipients to repay all TARP related
investments sooner rather than later;

the troublesome corporate governance and regulatory conflict of interest issues raised by
Treasury‟s ownership of equity and debt interests in the TARP recipients;

the stigma associated with continued participation in the TARP program by the
recipients; and

the demonstrated ability of the Administration to use the program to promote its
economic, social and political agenda with respect to, among others, the Chrysler and
GM bankruptcies.556
555
The Delphi transactions were negotiated between GM and Delphi. GM determined a failure of
Delphi would have led to high losses at GM. The auto team was involved in discussions to the
extent necessary to avoid potential destruction of equity value of GM, which would have led to
large losses to the Treasury investment and for the U.S. taxpayer.
Again, this response is particularly vague and inappropriate and avoids the key issue–did the
Administration advocate a “sweetheart” deal for the benefit of Platinum Equity. I recommend that SIGTARP
promptly investigate this matter.
556
See “BofA Seeks to Repay a Portion of Bailout,” The Wall Street Journal, September 1, 2009, at
online.wsj.com/article/SB125176546582274505.html#mod=todays_us_money_and_investing
The article provides:
The discussions between Bank of America and the government are the latest example of large
corporations trying to wrestle themselves free of the government's grip after extraordinary federal
assistance last year. Some other large firms, such as Goldman Sachs Group Inc., have already
repaid the government's investment, but Bank of America's situation was seen as much more
complex.
In addition to giving Bank of America extra TARP money, the government agreed in January to
absorb a chunk of losses on a $118 billion pool of assets owned by BofA and Merrill. The bank
would be on the hook for the first $10 billion in losses, and the U.S. would cover 90% of the
remainder.
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Some of the adverse consequences that have arisen for TARP recipients include, without
limitation:

although necessary, uncertain executive compensation restrictions;

corporate governance and conflict of interest issues;

employee retention difficulties; and

the distinct possibility that TARP recipients–including those who have repaid all Capital
Purchase Program advances but have warrants outstanding to Treasury–may be subjected
to future adverse rules and regulations.
I introduced legislation–H.R. 2745–to end the TARP program on December 31, 2009. In
addition, the legislation:

requires Treasury to accept TARP repayment requests from well capitalized banks;

requires Treasury to divest its warrants in each TARP recipient following the redemption
of all outstanding TARP-related preferred shares issued by such recipient and the
payment of all accrued dividends on such preferred shares;

provides incentives for private banks to repurchase their warrant preferred shares from
Treasury; and

reduces spending authority under the TARP program for each dollar repaid.
2. As previously noted, according to the latest estimate from the CBO, the investment of
TARP funds in the auto industry is expected to add $40 billion more to the deficit than
CBO calculated just five months earlier in March 2009.557 A reasonable interpretation of
In exchange for this protection, the bank would issue to the Treasury $4 billion in preferred stock
carrying an 8% dividend, costing the bank about $320 million a year. BofA also would pay the
Federal Reserve two-tenths of a percent on the $118 billion, or $236 million.
If the bank wanted to end the arrangement, an "appropriate fee" was required. The Treasury and
the Federal Reserve are asking the bank to pay between $300 million and $500 million to end this
plan and pushing executives to consider a number on the high end of that spectrum, said a person
close to the situation. The bank is now considering the request.
The bank and the government never signed a final contract on the loss-sharing pact amid
disagreement about what it would cover, and BofA said in May that it wanted out. Its view was
that regulators "tried to change the game," said a person familiar with the bank's position.
The bank balked at the idea of an exit fee, saying that its positions had never actually been
covered. Regulators argued that the bank benefited from the implied protection, and thus the bank
should pay as if the agreement had been legally in place from January through May.
See “The Budget and Economic Outlook: An Update,” Congressional Budget Office¸ August 2009, pages
55-56, at www.cbo.gov/ftpdocs/105xx/doc10521/08-25-BudgetUpdate.pdf. The report provides in part:
169
such estimate provides that the American taxpayers may suffer a loss of over 50 percent
of the TARP funds invested in Chrysler, GM and the other auto programs. I request that
the CBO release its latest estimates regarding the subsidy rate for the investment of
TARP funds in the auto industry.
3. The Administration should provide the Panel with the criteria it uses to determine which
entities or types of entities are allowed to receive assistance through TARP. The
Administration should also provide the Panel with a formal written legal opinion
justifying the use of TARP for any such entities.558
4. The Administration should inform the Panel whether it intends to recycle TARP funds
that have been repaid by TARP recipients and, if so, provide the Panel with a formal
written legal opinion justifying the treatment of TARP as a revolving credit and equity
facility.
5. The Administration should inform the Panel whether it intends to extend the TARP
program beyond December 31, 2009.
The improvement in market conditions results in a reduction in the subsidy rate associated with
the Capital Purchase Program (CPP)–a major initiative through which the government purchases
preferred stock and warrants (for the future purchase of common stock) from banks. CBO has
dropped the projected subsidy for the remaining investments in that program from 35 percent in
the March baseline to 13 percent. The decrease in the estimated CPP subsidy cost also reflects
banks‟ repurchase of $70 billion of preferred stock through June. Similarly, the estimated subsidy
cost for other investments in preferred stock (for example, that of American International Group)
has also been reduced. Partially offsetting those reductions in projected costs is the expansion of
assistance to the automotive industry; CBO has raised its estimate of the costs of that assistance
by nearly $40 billion relative to the March baseline.” [emphasis added.]
558
Each program has guidelines that specify eligibility criteria. These criteria are posted on the
financial stability website, www.financialstability.gov.
For example, in determining whether an institution is eligible for funding under the Automotive
Industry Financing Program, Treasury has identified the following factors for consideration,
among other things:
1.
The importance of the institution to production by, or financing of, the American automotive
industry;
2.
Whether a major disruption of the institution‟s operations would likely have a materially adverse
effect on employment and thereby produce negative effects on overall economic performance;
3.
Whether the institution is sufficiently important to the nation‟s financial and economic system that
a major disruption of its operations would, with a high probability, cause major disruptions to
credit markets and significantly increase uncertainty or losses of confidence, thereby materially
weakening overall economic performance; and
4.
The extent and probability of the institution‟s ability to access alternative sources of capital and
liquidity, whether from the private sector or other sources of U.S. government funds.
I find the “anything goes,” “we know it when we see it” response unhelpful and ask the Administration to
provide a formal written legal opinion.
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6. The Administration should continue to describe in detail what meaningful due diligence it
conducted before investing $81 billion in Chrysler, GM, GMAC and the auto suppliers.
7. The Administration should disclose how much additional funding and credit support (and
the source of such amounts) it expects to ask the American taxpayers to provide each of
Chrysler, GM, GMAC and the auto suppliers (i) by the end of this year and (ii) during
each following year until all investments have been repaid in full in cash and all credit
support has been terminated. The Administration should clearly state that the U.S.
government will not in any manner directly or indirectly guarantee the indebtedness,
obligations or undertakings of Chrysler, GM, GMAC or any of the auto suppliers.559
8. The Administration should forthrightly answer the following question: If Chrysler and
GM are unable to sell a substantial number of cars at an appropriate profit margin will
they be permitted to fail and liquidate or will they remain wards of the state?
9. The Administration should provide the American taxpayers with monthly reports
describing in sufficient detail the full extent of their investments in Chrysler, GM,
GMAC and the auto suppliers. The reports should also address the following matters:

when does the Administration anticipate that Chrysler, GM, GMAC and the auto
suppliers will return to profitability;560

what are the Administration‟s financial and business projections for Chrysler, GM,
GMAC and the auto suppliers over the next five years;
559
The Administration does not plan to provide any additional funds to GM and Chrysler beyond
those that have already been committed. GM and Chrysler may draw additional amounts under the
loan agreements relating to the supplier support program. This amount is expected to be up to
$500 million in total.
After allocating $81 billion of taxpayer funded TARP proceeds I sincerely doubt that the Administration
will be able to resist “spending only a few more billion” if either Chrysler or GM hit a bump along the road.
560
The Administration reviewed Chrysler‟s and GM‟s business plans, which were developed by the
companies. As part of this review process, the Administration‟s financial advisors performed
sensitivity analyses by varying the assumptions underlying the business plans. These scenarios
helped the Administration with its decision making process.
The Administration has not projected dates by which the companies will return to profitability,
which is dependent on the overall market conditions and economic recovery
GM, which will probably go public before Chrysler, is expected to go public over the next twelve
months, but the final decision will be made in both cases by the companies‟ boards of directors
and will be dependent, among other things, on the state of the public securities markets.
[emphasis added.]
It is simply amazing to me that the Administration would invest over $81 billion of taxpayer sourced TARP
funds without even projecting when Chrysler and GM may return to profitability.
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
when does the Administration anticipate that Chrysler and GM will go public;

what is the Administration‟s exit strategy regarding Chrysler, GM, GMAC and the auto
suppliers;561 and

when does the Administration anticipate that Chrysler, GM, GMAC and the auto
suppliers will repay in full in cash all TARP funds advanced by the American
taxpayers?562
561
The Administration plans to be a responsible steward of taxpayer money, and will periodically
evaluate both public and private options to exit these investments. For GM the most likely exit
strategy is a gradual sell off of shares following a public offering. For Chrysler, the exit strategy
may involve either a private sale or a gradual sell off of shares following a public offering.
The American taxpayers deserve a more thoughtful response for their $81 billion investment of TARP
funds.
562
In a response to the Panel the Administration stated:
The Administration evaluated various scenarios and believes that, under certain assumptions, GM
may be able to pay off a high percentage of the total funds advanced by the taxpayers. Less
optimistic, and in Treasury‟s view more likely scenarios involve a reasonable probability of
repayment of substantially all of the government funding for new GM and new Chrysler, and
much lower recoveries for the initial loans. Such analyses are obviously sensitive to the overall
market and the economy.
Based upon this vague response it appears that Chrysler and GM will most likely not repay all of the TARP
funds advanced by the American taxpayers.
In a written response to the Panel representatives of GM stated:
Question: When do you anticipate that your company will return to profitability?
Response: On July 10, GM‟s CEO announced that our Viability Plan projections contemplate breakeven
Adjusted Earnings Before Interest and Tax (EBIT) by 2010 and positive Adjusted Operating Cash Flow by
2011.
Question: What are your projections for your company over the next five years?
Response: Business plan projections for GM were included in the Stephen Worth Declaration filed in
Bankruptcy court on June 4, 2009, in support of the proposed 363 sale. These projections contemplate
adjusted Earnings Before Tax (EBT) of ($1.3)B, $3.0B, $5.3B, $6.9B and $7.8B for CY 2010 – 2014 and
at the time were based on current assumptions including total U.S. industry sales projections of 12.5M
units, 14.3M units, 16.0M units, 16.4M units and 16.8M units for CY 2010 – CY 2014.
Question: When do you anticipate that your company will go public?
Response: The timing of an initial public offering will be heavily influenced by conditions in the equity
markets and continued recovery in the auto industry, but we‟d like to see the company in a position to
launch a public offering as soon as sometime next year if the market conditions are suitable. Ultimately,
General Motor‟s Board of Directors will determine when an IPO would be in the best interest of the
Company and its stockholders.
Question: What is the Administration‟s exit strategy regarding the investment of TARP funds in your
company?
Response: We do not have any information to add to the testimony of Mr. Bloom at the hearing.
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10. The Administration should treat the American taxpayers as bona fide investors in
Chrysler and GM and provide them with at least the same level of disclosure they would
receive under the securities laws and state corporate law if Chrysler and GM were public
companies and each American taxpayer a common shareholder. Such materials should
include, without limitation, Forms 10-K, 10-Q and 8-K, annual reports, management‟s
discussion and analysis (MD&A), projections, proxy materials, offering documents, and
the like.
11. Chrysler and GM should promptly disclose all contractual arrangements with the U.S.
government, together with a detailed description of the contract, its purpose, the
transparent and open competitive bidding process undertaken and the arm‟s length and
market-directed nature of the contract.563
Question: When do you anticipate that your company will repay in full in cash all TARP funds advanced
by the American taxpayers?
Response: The American taxpayer will be repaid as GM repays the United States Department of the
Treasury loan and as the United States Department of the Treasury monetizes its equity in GM post our
IPO. While we are required to repay the United States Department of the Treasury loan by 2015, our goal is
to repay this loan much sooner. We expect the company will be taken public as soon as practical sometime
next year. Ultimately, General Motor‟s Board of Directors will determine when an IPO would be in the best
interest of the Company and its stockholders.
In a written response to the Panel representatives of Chrysler stated:
Question: When do you anticipate that your company will return to profitability? What are your projections
for your company over the next five years? When do you anticipate that your company will go public?
Response: As part of the 363 sales process, Chrysler LLC submitted a business plan (the “363 plan”).
Currently, Chrysler Group LLC is elaborating its 5-year business plan, the results of which are expected to
represent an improvement on the 363 plan outcome.
Decisions with respect to an initial public offering are within the province of the Members (equity holders).
Question: What is the Administration‟s exit strategy regarding the investment of TARP funds in your
company?
Response: The $7 billion secured loan to Chrysler Group LLC from the US Treasury requires repayment of
all amounts borrowed by June 2017. Decisions with respect to an initial public offering are within the
province of the Members (equity holders).
Funds advanced under the Warranty Support Program were repaid in July 2009, and funds advanced under
the Supplier Support Program in May 2009 are scheduled to be repaid in 2010.
Question: When do you anticipate that your company will repay in full in cash all TARP funds advanced
by the American taxpayers?
Response: The $7 billion secured loan to Chrysler Group LLC from the US Treasury requires repayment of
all amounts borrowed by June 2017. Decisions with respect to an initial public offering are within the
province of the Members (equity holders).
Funds advanced under the Warranty Support Program were repaid in July 2009, and funds advanced under
the Supplier Support Program in May 2009 are scheduled to be repaid in 2010.
563
173
12. Chrysler and GM should not receive favorable government contracts or other direct or
indirect subsidies the award of which is not based upon competitive, objective and
transparent criteria.564
13. The U.S. government should establish transparent procedures to resolve any conflict of
interest issues arising from its role as a creditor or equity holder in Chrysler and GM and
as a supervising governmental authority for Chrysler and GM.565
14. The IRS, SEC and other governmental agencies should be permitted to discharge their
regulatory and enforcement responsibilities with respect to Chrysler and GM without
political influence.566
15. The Administration should disclose its corporate governance policies regarding Chrysler
and GM as well as the vetting process for new directors of Chrysler and GM.567
Chrysler and GM will be subject to the same reporting requirements with respect to contractual
arrangements as are any other similarly situated business entity. The companies are also subject to
audit, including by SIGTARP and GAO.
564
Chrysler and GM will not receive any special treatment when competing for government contracts
or any direct or indirect subsidies as a result of the government‟s investments in these companies.
They will have to win contracts based on their commercial strengths like any other auto
manufacturer. As a principle, the Administration does not plan to manage these businesses or get
involved in day to day management.
It is critical that the Panel continue to monitor this issue.
565
The Administration has already separated its role as investor/lender from that of regulator. The
Administration has completely different teams working in these capacities, and decision-making
in these areas is very purposefully separated. For matters related to the financial interests of
taxpayers, the team overseeing the investments and loans will continue to act like any commercial
actor in terms of protecting taxpayer capital. For regulatory matters, those functions will continue
as if the GM and Chrysler interventions had not taken place.
566
The companies will be subject to the same regulatory and enforcement requirements as are any
other similarly situated business entity.
567
The Treasury auto team used a commercial process to vet directors as would be expected of any
well-managed corporation. In the end, the auto team is comfortable that it has brought together
world-class boards that are focused on being responsible stewards of taxpayer dollars and creating
shareholder value.
174
16. The Chair of the Board and CEO of Chrysler and GM should certify each quarter that the
government has not in any manner directed or influenced the policies or day-to-day
management and affairs of either company.
17. The management of Chrysler and GM should provide the American taxpayers with a
quarterly business plan that addresses, without limitation, the following challenging
issues:
Question: How frequently does communication occur between any member of the Administration and the
directors and executives from your company?
Response: Communications between the Administration and General Motors Company has been reduced
significantly since July 10, 2009. The number of members on the President‟s Automotive Task Force has
been reduced significantly.
Question: What is the nature of such communication?
Response: The contact has focused on questions related to regular financial reporting requirements under
the UST loan as well as the amendment of the UST loan document to further clarify certain reps and
warranties related to GM and its covered group members.
Question: Is the Administration in any manner providing input regarding corporate policy and/or the dayto-day management of your company?
Response: There are some areas regarding corporate policy in which we communicate with the
Administration such as executive compensation. The Administration does not provide input regarding dayto-day management of our company.
Question: If so, what input is being provided and under what authority?
Response: Generally, input has been provided by the United States Department of the Treasury and we
expect input from the TARP Special Compensation Master.
Question: Does your company seek the approval of the Administration regarding any matter?
Response: Yes, under the terms of the United States Department of the Treasury loan we must seek
approval on items such as withdraws from the escrow account as well as TARP Special Compensation
Master approval of compensation plans and payments for our senior executive officers and the next 20
highest compensated employees.
Question: How frequently does communication occur between any member of the Administration and the
directors and executives from your company? What is the nature of such communication?
Response: There is no established schedule for communications. Since June 10, 2009, interactions with the
US Treasury have occurred a few times a week and have related to, among other things, the formation and
composition of the Board, financial reporting requirements, efforts to finalize a long-term business plan and
an executive compensation program, and the Warranty Commitment Program and Supplier Receivables
Program sponsored by the US Treasury.
Question: Is the Administration in any manner providing input regarding corporate policy and/or the dayto-day management of your company? If so, what input is being provided and under what authority? Does
your company seek the approval of the Administration regarding any matter?
Response: The US Treasury has no role in the company‟s day-to-day management or policy making, except
that (1) the US Treasury included a requirement in its First Lien Credit Agreement with the company that
requires the company to maintain an expense policy prohibiting or limiting certain expenditures, and (2) the
company‟s executive compensation program is required to be approved by the US Treasury‟s Special
Master for Executive Compensation, Mr. Kenneth Feinberg.
175

Without a growing SUV market, how do Chrysler and GM plan to compete against the
Asian and European manufacturers who have all but perfected the design and
manufacture of well-built fuel efficient cars?568
568
GM continuously assesses the automotive market and consumer behavior from three viewpoints:
historical lessons, current realities and future projections. History provides insight re: consumer
behavior relative to actual market conditions - the end result of economic factors such as overall
economic health, gas prices, regulatory impacts; new product entries; societal trends, etc. Current
realities provide insight to real-time behaviors - for example, the dramatic shift to compact sized
vehicles during the gas price spike of 2008 when consumers expected fuel prices to continue to
climb to the $5/gal level. Future projections assess the expected impact of the economic and
regulatory outlook, demographic and societal trends and expected supply side influences. This
"scanning" process leverages consumer surveys, primary research and product clinics, internal
models and external academic and industry experts from various fields.
As part of both the vehicle and marketing development processes, GM leverages extensive
consumer and expert opinion research. The research may include full scale models of future
entries in a competitive showroom environment with a representative sample of current new
vehicle owners, "garage visits" (ethnography) in competitive owners' homes or focus groups in a
neutral setting. All research is constructed to eliminate bias and GM's sponsorship of the research
is masked.
In a written response to the Panel, representatives of Chrysler stated:
Analysis of industry trends indicate that over the past five years small and compact vehicles have
captured a larger portion of the U.S. light vehicle industry (2004 14%; 2008 22%). Industry
forecasts predict a continuation of this growth over the next five years.
Based on our propriety web-based survey about powertrains, Americans feel that fuel prices will
be, on average, $2.89 per gallon in one year and $4.50 in five years. This supports the expectation
that more fuel efficient vehicles will grow in demand as we have seen with recent fuel price
spikes. With technology, consumers will also have a choice of getting large vehicles that are more
fuel efficient but with the likely price premium of the technology, small car demand will rise.
Since 2004, there has been a gradual increase in purchase intentions for smaller vehicles and a
gradual decrease for larger vehicles. The gas price spike in 2008 magnified (and possibly
accelerated) this trend.
Based on our dedicated, proprietary i-community that monitors consumer perceptions of
automotive propulsion and small cars, 41% of consumers would likely consider a small car in the
future. Fifty percent indicated they were unlikely to consider a small car.
Chrysler does not currently offer A/B segment vehicles, however, we are successful in the segments in
which we offer vehicles:
Chrysler Share of Segment (Chrysler Segmentation)
Full Size Luxury 17.8 % (Chrysler 300/C)
Compact SUV 43.5% (Wrangler, Compass, Patriot)
MPV 40.1% (Town & Country, Grand Caravan)
Large Pick-Up 17.8% (Ram)
Research shows that for small car buyers the top five primary reasons for purchase are the following (2008
New Vehicle Experience Study, Strategic Vision Inc.):
Fuel Economy 42.7%
Value for the Money 17.6%
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
How do Chrysler and GM plan to stop the deterioration of their market share?

How do Chrysler and GM plan to decrease their time from design to market?

How do the all-in wage costs of Chrysler and GM compare with those of Asian
automakers both within and outside the United States?

How do Chrysler and GM plan to develop the design and technical expertise necessary to
build vehicles with the fit-and-finish and price-point of, for example, a Honda Accord or
Civic or a Toyota Camry or Corolla, not to mention a Toyota Prius?569
Price/Monthly Payment 6.0%
Fun to Drive 4.2%
Reliability 3.7%
Having access to Fiat‟s technology will enable Chrysler to compete in the small vehicle segments with
these needs.
Fiat‟s success in highly competitive small car segments in markets such as Europe and Brazil
helped establish Fiat as a highly competitive global manufacturer. The small car technology that
Fiat will transfer to Chrysler will lead to similar success in the growing U.S. small car segment.
In addition, Fiat will make available to Chrysler Group its C platform technology, which will be
the basis for the renewal of the Chrysler product offerings in both the C and D market segments.
These actions by Fiat will provide Chrysler with technologically updated and more competitive
products in the most important segments in the US market.
569
See “Fiat ranks last in UK JD Power survey, bodes poorly for Chrysler,” MotorAuthority, May 4, 2009,
at: www.motorauthority.com/blog/1033084_fiat-ranks-last-in-uk-jd-power-survey-bodes-poorly-forchrysler#comments. The article provides:
Chrysler's vehicles, like all of America's cars, have improved greatly in recent years. But not-toodistant memory reminds us of the Le Baron and even of another ill-fated Italian tie-up and its
Maserati-branded spawn. So Fiat's poor scores in the most recent JD Power survey in the United
Kingdom gives cause to wonder if the Fiat-Chrysler union might ultimately be a tragic one.
Fiat's role in helping to save Chrysler post-bankruptcy was applauded by President Obama just
days ago, but already the naysayers are building their case. And unfortunately, it's shaping up to
be a decent one. The latest JD Power figures put Fiat at the bottom - 28th of 28 - in UK
satisfaction rankings. Lexus, Skoda, Honda, Toyota and Jaguar filled out the top 5 spots, while
Citroen, Kia, Chevrolet, Mitsubishi and Fiat rounded out the bottom five.
Which is a roundabout way of saying Fiat's car's aren't exactly renowned for their reliability in
Europe, nor are those of sister brand Alfa Romeo though the brand wasn't separated in the results
list. The last time either car was sold in the U.S. they had developed and suffered from a
reputation for unreliability that ultimately contributed to their retreat from our shores.
Now the continued poor performance of Fiat in markets where it's already established calls into
question whether the Italian company will be able to turn things around at Chrysler, or whether the
partnership will just degenerate into a downward spiral of poor design feeding poor execution. On
the other hand, Fiat also makes brilliant cars like the 500, which slots into a segment where
Chrysler is completely absent.
177

What progress have Chrysler and GM made with respect to the development of global car
platforms?

Will the Chevrolet Volt materially assist GM‟s turn-around efforts or is its anticipated
price-point too high?570

Will American consumers embrace very small Fiat-type cars?

After the treatment of the Chrysler senior secured creditors and the GM bondholders in
the bankruptcy proceedings, how do Chrysler and GM anticipate that they will raise
private sector financing?
18. Why does it appear that Chrysler and GM failed to place any vehicle in the top-ten list of
cars purchased under the “Cash for Clunkers Program”?571 It has been reported that
Asian manufacturers claimed eight spots and Ford took the remaining two. The program
Will the synergies make both companies better than they are on their own? Or will the FiatChrysler partnership make the DaimlerChrysler era seem like a golden age?”
See also “Chrysler Said to Set Board Review of Models, Fiat Integration,” Bloomberg.com, August 28,
2009, at bloomberg.com/apps/news?pid=20601109&sid=ae_gNcQurQuA.
570
See “GM‟s Long, Hard, Bumpy Road to the Chevrolet Volt,” The New York Times, July 10, 2009, at
www.nytimes.com/cwire/2009/07/10/10climatewire-gms-long-hard-bumpy-road-to-the-chevrolet-vo40366.html?scp=3&sq=volt%20chevrolet%20july%20prius&st=cse. See also “Sticker Shock,” The Economist,
August 21, 2009, at www.economist.com/sciencetechnology/displaystory.cfm?story_id=14292008.
571
GM, however, placed second overall with 17.6 percent of total sales under the program. Toyota was the
lead manufacturer (19.4 percent) and Ford was third (14.4 percent) followed by Honda (13 percent) and Nissan (8.7
percent). See www.huffingtonpost.com/2009/08/26/cash-for-clunkers-topsell_n_269700.html.
See an AP article on the “Cash for Clunkers Program” at
www.google.com/hostednews/ap/article/ALeqM5h4OJw5vl4nQapaKrl9XOdfTLhElwD9A5CE1O2.
See also, “Toyota Tops List of Cash-for-Clunkers Winners,” The New York Times, August 26, 2009, at
www.nytimes.com/2009/08/27/business/27clunkers.html?_r=1&emc=eta1.
See also, “Next for Auto Sector, Post-Clunker Hangover,” The Wall Street Journal, September 1, 2009, at
online.wsj.com/article/SB125175596718373969.html#mod=todays_us_money_and_investing.
The article provides:
That could help send some car sales downward in coming months, offsetting somewhat the benefit
to car makers and retailers of the governments‟ $2.9 billion of rebates given to customers who
traded in 700,000 old, gas-guzzling cars, for new ones in the cash-for-clunkers program.
“We expect sales for the remainder of the year to fall well below August results,” wrote Brian
Johnson, analyst at Barclays Capital.
Mr. Johnson warned that investors may use Tuesdays sales figures to take profits in auto stocks.
Already, auto stocks that appeared to get a boost from the program have begun to sell off.
Now investors need signs of more solid repair to consumer confidence and growth in demand for
cars absent government coupons.
See “GM, Chrysler to Advance Cash for Clunker Rebates,” The Wall Street Journal, August 20, 2009, at
online.wsj.com/article/SB125077503806246225.html.
178
served as a real-world market-check for the products offered by Chrysler and GM, and
the news does not appear overly reassuring. Is it possible that in its haste to develop and
expand the Cash for Clunkers Program the Administration actually harmed the prospects
for Chrysler and GM? To the extent the program expedited the purchase of cars –
primarily foreign cars – it‟s possible that future sales–including those by Chrysler and
GM – will be unusually sluggish.572 The management of Chrysler and GM should
address their performance under the Cash for Clunkers Program and whether the program
had the unintended consequence of depressing future demand for their products.
19. It has been reported that GM may be developing a plan to retain Opel and its British
affiliate Vauxhall.573 The Administration should disclose if TARP funds will be used in
such endeavor or if the U.S. government will directly or indirectly guarantee any related
financings or contractual undertakings. The Administration should also explain how the
retention of Opel and Vauxhall will create or save any jobs in this country or facilitate the
repayment of TARP funds previously invested in GM.
572
See “Bangers and Cash,” The Economist, August 24, 2009, at
www.economist.com/businessfinance/displaystory.cfm?story_id=14296297. The article provides:
Rebate schemes like this tend to encourage buyers to advance purchases that they would have
made anyway, thus cannibalising future sales. The termination of a car-scrappage scheme in
France in the 1990s led to sales plunging by 20%. Nor is it certain that the scheme provides a
more general boost to the economy, as buyers may have been put off other purchases in order to
afford a new vehicle. That said, there is a case to be made that, given the depth of the crisis a few
months ago, the boost to total demand prompted by the scrappage scheme did at least help to avert
a Keynsian “liquidity trap”, leading to a depression.
The green benefits are also hotly contested. The scheme should help to make America‟s car fleet
slightly less fuel inefficient, but there are significant environmental costs in scrapping perfectly
good cars and building new ones.
At least the scheme may have persuaded Americans to consider the whole cost of owning a
vehicle, beyond the sticker price. Early figures showed that over 80% of the vehicles traded in
were trucks and SUVs and that 59% of the vehicles bought were cars. That may be a sign of more
trouble for American carmakers which are particularly reliant on sales of SUVs and trucks and
which have been bailed out at huge cost to taxpayers. The top ten clunkers traded in are all
products of Detroit‟s big three and the greater gains have come for foreign car companies (mainly
American-built vehicles at non-unionised factories).
Only Ford, which did not seek a government bail-out, partly because it was making and selling
cars more in tune with America‟s new tastes, features in the top five of models bought under the
programme. GM and Chrysler, hoping to reinvent themselves as greener car firms, may find that
cash-for-clunkers, by turning more American heads towards Asia‟s carmakers, is a present they
regret receiving.
573
See “GM is Developing an Option to Keep Opel,” The Wall Street Journal, August 24, 2009, at
online.wsj.com/article/SB125114535906254779.html. See also “Looking for Reverse,” The Economist, August 27,
2009, at www.economist.com/businessfinance/displaystory.cfm?story_id=14327351.
179
20. The Panel should address the following questions: (i) did the Administration force
Chrysler to accept a deal with Fiat,574 and (ii) did the Administration impede any
potential merger or business combination or arrangement between Chrysler and GM?575
21. Representatives of the UAW were invited to testify at the auto bailout hearing held by the
Panel at Wayne State University School of Law in Detroit on July 27. Even though the
headquarters of the UAW – Solidarity House – is a mere fifteen minute drive from the
location of the hearing,576 no representative from the UAW agreed to testify. In addition,
the CFOs of Chrysler and GM declined to appear and for some reason the Panel failed to
invite the CEOs. Since the leadership of the UAW and senior management of Chrysler
574
The Administration made the determination that Chrysler‟s business plan submitted on February
17th was not viable and that, in order for Chrysler to receive taxpayer funds, it needed to find a
partner with whom it could establish a successful alliance. Chrysler identified Fiat as a potential
partner after conducting a lengthy search process that began before Treasury made its initial loan
to Chrysler and in which Treasury had no involvement. Fiat was the only potential partner to offer
to enter into such an alliance, and ultimately the Chrysler Board made the determination that
forming an alliance with Fiat was the best course of action for its stakeholders.
Chrysler pursued an alliance with Fiat because it viewed Fiat‟s products and distribution network
as complementary to Chrysler‟s and capable of strengthening Chrysler for the long-term. The US
Treasury indicated that it would provide financing in support of an alliance with Fiat – first in the
context of an out-of-court restructuring that required significant concessions by key constituencies,
and later in the context of a sale transaction under Section 363 of the U.S. Bankruptcy Code.”
I would have expected a simple “no” or “yes” followed by an explanation.
575
See “Unions Express Unease Over Potential G.M.-Chrysler Deal,” The New York Times, October 14,
2008, at dealbook.blogs.nytimes.com/2008/10/14/unions-express-unease-over-potential-gm-chryslerdeal/?scp=24&sq=chrysler%20gm%20merger&st=cse. The article reports:
According to Bloomberg News, United Auto Workers President Ron Gettelfinger, told a Detroit
radio station on Tuesday, „I personally would not want to see anything that would result in a
consolidation that would mean the elimination of additional jobs.
The Administration allowed GM and Chrysler to work toward a commercial solution they thought
made sense for their businesses. Each company made its own determination to pursue a future
independent of the other.
GM advised Chrysler it would discontinue merger discussions due to the need to address its own
pressing liquidity issues.
No, the Obama Administration did not thwart or discourage any arrangements between GM and
Chrysler.
576
See MapQuest driving directions from Solidarity House to Wayne State University School of Law at
www.mapquest.com/maps?1a=8000+Jefferson+Avenue%2C+Detroit%2C+Michigan+48214&2a=471+W.+Palmer
+Avenue%2C+Detroit%2C+Michigan+48202+.
180
and GM have experienced little difficulty in arranging their schedules to travel to
Washington, DC – hat-in-hand – in search of bailout funds, you would think they could
find time to drive across town to testify before the Panel. You might also think they
would welcome the opportunity to thank the American taxpayers for their profound
generosity in rescuing two insolvent and grossly mismanaged companies from
liquidation. With respect to all future hearings, the Panel should issue a press release
noting the names and affiliations of all invitees who decline to testify.
181
ANNEX TO CONGRESSMAN JEB HENSARLING’S
ADDITIONAL VIEWS
182
1. Analysis of Chrysler and GM Cases by Bankruptcy Scholars
The following analysis indicates that a number of well respected bankruptcy scholars
believe the Chrysler and GM reorganizations were not legally well founded.577 Instead of simply
577
Other bankruptcy law scholars have commented on the Chrysler and GM cases, including:
(i) Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law, The University of
Chicago, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and a visiting law professor at New
York University Law School, offered the following analysis in the May 12, 2009 issue of Forbes, at
www.forbes.com/2009/05/11/chrysler-bankruptcy-mortgage-opinions-columnists-epstein.html:
The proposed bankruptcy of the now defunct Chrysler Corp. is the culmination of serious policy
missteps by the Bush and Obama administrations. To be sure, the long overdue Chrysler
bankruptcy is a welcomed turn of events. But the heavy-handed meddling of the Obama
administration that forced secured creditors to the brink is not.
A sound bankruptcy proceeding should do two things: productively redeploy the assets of the
bankrupt firm and correctly prioritize various claims against the bankrupt entity. The Chrysler
bankruptcy fails on both counts.
In a just world, that ignominious fate would await the flawed Chrysler reorganization, which
violates these well-established norms, given the nonstop political interference of the Obama
administration, which put its muscle behind the beleaguered United Auto Workers. Its onerous
collective bargaining agreements are off-limits to the reorganization provisions, thereby
preserving the current labor rigidities in a down market.
Equally bad, the established priorities of creditor claims outside bankruptcy have been cast aside
in this bankruptcy case as the unsecured claims of the union health pension plan have received a
better deal than the secured claims of various bond holders, some of which may represent pension
plans of their own.
President Obama–no bankruptcy lawyer–twisted the arms of the banks that have received TARP
money to waive their priority, which is yet another reason why a government ownership position
in banks is incompatible with its regulatory role. Yet the president brands the non-TARP lenders
that have banded together to fight this bogus reorganization as "holdouts" and "speculators."
Both charges are misinformed at best. A holdout situation arises when one party seeks to get a
disproportionate return on the sale of an asset for which it has little value in use. Thus the owner
of a small plot of land could hold out for a fortune if his land is the last piece needed to assemble a
large parcel of land. But the entire structure of bankruptcy eliminates the holdout position of all
creditors, secured and unsecured alike, by allowing the court to "cram" the reorganization down
their throats so long as it preserves the appropriate priorities among creditors and offers the
secured creditors a stake in the reorganized business equal to the value of their claims. Ironically,
Obama's Orwellian interventions have allowed unsecured union creditors to hold out for more than
they are entitled to.
His charge of "speculation" is every bit as fatuous. Speculators (who often perform a useful
economic function) buy high-risk assets at low prices in the hope that the market will turn in their
favor. By injecting unneeded uncertainty into the picture, Obama has created the need for a
secondary market in which nervous secured creditors, facing demotion, sell out to speculators who
are better able to handle that newly created sovereign risk. He calls on citizens to buy Chrysler
products, but patriotic Americans will choose to go to Ford, whose own self-help efforts have been
hurt by the Chrysler and GM bailouts.
Sadly, long ago Chrysler and GM should have been allowed to bleed to death under ordinary
bankruptcy rules, without government subsidy or penalty. Libertarians have often remarked on
these twin dangers in isolation. The Chrysler fiasco confirms their deadly synergistic effect.
183
paraphrasing the analysis of the bankruptcy scholars, I thought it best to let them describe the
problems raised by the Chrysler578 and GM decisions in their own words. The next section
(ii) Professor Todd J. Zywicki, Professor of Law, George Mason University, offered the following analysis
in the May 13, 2009 issue of The Wall Street Journal, at online.wsj.com/article/SB124217356836613091.html:
The rule of law, not of men – an ideal tracing back to the ancient Greeks and well-known to our
Founding Fathers – is the animating principle of the American experiment. While the rest of the
world in 1787 was governed by the whims of kings and dukes, the U.S. Constitution was
established to circumscribe arbitrary government power. It would do so by establishing clear rules,
equally applied to the powerful and the weak.
Fleecing lenders to pay off politically powerful interests, or governmental threats to reputation and
business from a failure to toe a political line? We might expect this behavior from a Hugo Chávez.
But it would never happen here, right?
Until Chrysler.
The close relationship between the rule of law and the enforceability of contracts, especially credit
contracts, was well understood by the Framers of the U.S. Constitution. A primary reason they
wanted it was the desire to escape the economic chaos spawned by debtor-friendly state laws
during the period of the Articles of Confederation. Hence the Contracts Clause of Article V of the
Constitution, which prohibited states from interfering with the obligation to pay debts. Hence also
the Bankruptcy Clause of Article I, Section 8, which delegated to the federal government the sole
authority to enact "uniform laws on the subject of bankruptcies.”
The Obama administration's behavior in the Chrysler bankruptcy is a profound challenge to the
rule of law. Secured creditors – entitled to first priority payment under the "absolute priority rule"
– have been browbeaten by an American president into accepting only 30 cents on the dollar of
their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get
about 50 cents on the dollar.
The absolute priority rule is a linchpin of bankruptcy law. By preserving the substantive property
and contract rights of creditors, it ensures that bankruptcy is used primarily as a procedural
mechanism for the efficient resolution of financial distress. Chapter 11 promotes economic
efficiency by reorganizing viable but financially distressed firms, i.e., firms that are worth more
alive than dead.
Violating absolute priority undermines this commitment by introducing questions of redistribution
into the process. It enables the rights of senior creditors to be plundered in order to benefit the
rights of junior creditors.
The U.S. government also wants to rush through what amounts to a sham sale of all of Chrysler's
assets to Fiat. While speedy bankruptcy sales are not unheard of, they are usually reserved for
situations involving a wasting or perishable asset (think of a truck of oranges) where delay might
be fatal to the asset's, or in this case the company's, value. That's hardly the case with Chrysler.
But in a Chapter 11 reorganization, creditors have the right to vote to approve or reject the plan.
The Obama administration's asset-sale plan implements a de facto reorganization but denies to
creditors the opportunity to vote on it.
By stepping over the bright line between the rule of law and the arbitrary behavior of men,
President Obama may have created a thousand new failing businesses. That is, businesses that
might have received financing before but that now will not, since lenders face the potential of
future government confiscation. In other words, Mr. Obama may have helped save the jobs of
thousands of union workers whose dues, in part, engineered his election. But what about the
untold number of job losses in the future caused by trampling the sanctity of contracts today?
578
The United States Court of Appeals for the Second Circuit recently affirmed the decision of the
bankruptcy court in the Chrysler proceedings. In re Chrysler LLC, 2009 WL 2382766 (2d Cir. 2009). The court
accepted the bankruptcy court‟s finding that the assets of Old Chrysler had a fair market value of approximately $2
184
contains a set of examples that illustrate certain of the fundamental objections raised by the
bankruptcy law professors.
1. Barry E. Adler, the Petrie Professor of Law and Business, New York University, offered
the following testimony to the Panel:
The rapid disposition of Chrysler in Chapter 11 was formally structured as a sale
under §363 of the Bankruptcy Code.579 While that provision does, under some
conditions, permit the sale of a debtor‟s assets, free and clear of any interest in
them, the sale in Chrysler was irregular and inconsistent with the principles that
undergird the Code.
The most notable irregularity of the Chrysler sale was that the assets were not sold
free and clear...That is, money that might have been available to repay these
secured creditors was withheld by the purchaser to satisfy unsecured obligations
owed the UAW. Thus, the sale of Chrysler‟s assets was not merely a sale, but
also a distribution–one might call it a diversion – of the sale proceeds seemingly
inconsistent with contractual priority among the creditors.
Given the constraint on bids, it is conceivable that the liquidation value of
Chrysler‟s assets exceeded the company‟s going-concern value but that no
liquidation bidder came forward because the assumed liabilities – combined with
the government‟s determination to have the company stay in business – made a
challenge to the favored sale unprofitable, particularly in the short time frame
afforded. It is also possible that, but for the restrictions, there might have been a
higher bid for the company as a going concern, perhaps in anticipation of striking
a better deal with workers.580 Thus, the approved sale may not have fetched the
best price for the Chrysler assets. That is, the diversion of sales proceeds to the
assumed liabilities may have been greater than the government‟s subsidy of the
transaction, if any, in which case the secured creditors would have suffered a loss
of priority for their claims. There is nothing in the Bankruptcy Code that allows a
sale for less than fair value simply because the circumstances benefit a favored
group of creditors.
billion, but, unfortunately, did not address the “bidding procedure” irregularities raised by Professors Adler, Roe and
Skeel which are discussed in the text below. The court also declined to address whether the Bush and Obama
Administrations had the authority to use TARP funds with respect to Chrysler and GM.
579
Professor Adler: The Bankruptcy Code appears in Title 11 of the United States Code.
580
Professor Adler: Note that these restrictions would have prevented credit bidding even if the secured
bondholders had collectively desired to make such a bid because the required assumption of liabilities effectively
eliminated the secured lender priority that is necessary for a credit bid.
185
Viewed another way, the approved transaction was not a sale at all, but a
disguised reorganization plan, complete with distribution to preferred creditors.
Chrysler was a blueprint for the General Motors bankruptcy, which, like that of
Chrysler, included a sale of the debtor‟s valuable assets to an entity that assumed
unsecured obligations owed its workers or former workers.
Still, just as in the case of Chrysler, the approval of a restricted bid process [in
GM] establishes a dangerous precedent, one that went unnoticed, or at least
unnoted, by the court.
Judge Gerber [in GM] ignores the sales procedure, which, like that in Chrysler,
strictly limited the time for competing bids and restricted bidders to those willing
to assume significant UAW liabilities. The process thus precluded a potentially
higher bid by a prospective purchaser who was unwilling to make the same
concessions to the UAW that the government-sponsored purchaser was willing to
endure. Thus, there remained the theoretical possibility that the process
impermissibly transferred asset value from the company‟s other creditors to the
UAW. This is merely a theoretical possibility. As noted above, it may well be
that no creditor other than the government secured lenders suffered a loss of
priority from the transaction. But the case stands as precedent that might cause
later lenders to doubt whether future debtors will be forced in bankruptcy to live
up to their obligations. And as also noted above, wary lenders are inhospitable to
economic development.
2. Mark J. Roe and David A. Skeel, Professors of Law, Harvard University and the
University of Pennsylvania, respectively, offered the following analysis in their paper
“Assessing the Chrysler Bankruptcy” (which also addresses the GM bankruptcy):
Chrysler entered and exited bankruptcy in 42 days, making it one of the fastest
major industrial bankruptcies in memory. It entered as a company widely thought
to be ripe for liquidation if left on its own, obtained massive funding from the
United States Treasury, and exited through a pseudo sale of the main assets to a
new government funded entity. Most creditors were picked up by the purchasing
entity, but some were not. The unevenness of the compensation to prior creditors
raised considerable concerns in capital markets.
Appellate courts had previously developed a strong set of standards for a § 363
sale: The sale must have a valid business justification, the sale cannot be a sub
rosa plan of reorganization, and if the sale infringes on the protections afforded
creditors under Chapter 11, the court can only approve it after fashioning
appropriate protective measures.
186
The Chrysler reorganization failed to comply with these requirements. Although
Chrysler needed to be repositioned, and needed to be repositioned quickly, it had
a few weeks, maybe a month, to get the process done right in a way that would
neither frighten credit markets nor violate priorities. Chrysler‟s facilities were
already shut down and not scheduled to reopen immediately. Fiat, the nominal
buyer, was providing no cash. The party with the money was the U.S. Treasury,
and it wasn‟t walking away.
The plan surely was a sub rosa plan, in that it allocated billions of dollars – the
core determination under § 1129 – without the checks that a plan of
reorganization requires.
The informal, makeshift checks that courts had previously required when there
were strong § 1129 implications were in Chrysler weak or nonexistent. The
courts did not even see fit to discuss § 1129 in their opinions. There was de facto
consent from a majority of the bank lenders (although not from products liability
claimants), but that consent came from parties afflicted with serious conflicts of
interest and who may well be viewed as controlled by the player controlling the
reorganization – the United States Treasury. There was a pseudo-market test, not
a real market test, because the plan only marketed the reorganization plan itself,
when the issue at stake was whether the assets alone had a higher value.
Worse yet, it‟s quite plausible to view the Chrysler bankruptcy as not having been
a sale at all, but a reorganization. The New Chrysler balance sheet looks
remarkably like the old one, sans a couple of big creditors. Courts will need to
develop rules of thumb to distinguish true § 363 sales from bogus ones that are
really reorganizations. We suggest a rough rule of thumb to start with: if the new
balance sheet has creditors and owners who constituted more than half of the
selling company‟s balance sheet, but with some creditors left behind, the
transaction should be presumed not to be a sale at all, but a reorganization. The
Chrysler transaction would have failed that kind of a test.
One might be tempted to dismiss the inquiry as needless worry over a few
creditors. But we should resist that easy way out. Much corporate and
commercial law has to do with the proper treatment of minority creditors and
minority shareholders. For minority stockholders, there‟s an elaborate corporate
law machinery for freezeouts when a majority stockholder seeks to engineer a
transaction that squeezes out minority stockholders. For minority creditors,
there‟s a century of bankruptcy and equity receivership law designed to balance
protection from the majority‟s potential to encroach on the minority and squeeze
them out from their contractual priority against the minority‟s potential to hold
out perniciously.
These are neither small nor simply fairness-based
187
considerations: Capital markets depend on effective mechanisms that prevent
financial majorities from ousting financial minorities from their ratable position in
an enterprise. That‟s what‟s at stake.
It‟s in that light that the Chrysler bankruptcy was pernicious, in that it failed to
comply with good bankruptcy practice, reviving practices that were soundly
rejected nearly a century ago. Going forward, the extent of Chrysler‟s damage to
bankruptcy practice and financial markets will depend on how it is construed by
other courts, and whether they will limit its application, as they should.”
We can hope that bankruptcy judges will come to see Chrysler as flawed, but
unique. They should require a better bidding process and attend better to priority.
They can be more skeptical of the facts when parties say that the new entity is sua
sponte recognizing the bulk of the old entity‟s debts; this is a strong signal that
they are witnessing a sub rosa reorganization plan, designed to avoid § 1129.
They could latch onto the fact that in Chrysler there was an unrebutted liquidation
value study and, if they are faced with a contested valuation, require a more open
auction and better makeshift substitutes for the § 1129 protections. Or they might
simply say that the government‟s involvement made Chrysler sui generis. Better
yet, the courts could develop rules of thumb, such as the 50% rule we suggested
above to cull presumed pseudo sales from the real ones.
Whatever promising signs can be gleaned from Delphi and Phoenix Coyotes, are
offset by the General Motors bankruptcy court‟s invocation of Chrysler as
controlling law in the Second Circuit. The government used the same template
for the § 363 sale in GM as it did in Chrysler. As in Chrysler, the buyer was not a
true third party, the ostensible immediacy to the urgency of the sale was
debatable, and the § 363 bidding procedures required that would-be bidders agree
to the retiree settlement negotiated by the government and GM. But GM‟s
secured creditors, unlike their counterparts in Chrysler, were paid in full. The
GM sale was in this dimension thus easier to reconcile with ordinary priority rules
than Chrysler. It‟s plausible that the Treasury adjusted to the pushback from
capital markets and the media criticism that accompanied the Chrysler deal.581
3. Stephen J. Lubben, the Daniel J. Moore Professor of Law, Seton Hall University, offered
the following testimony to the Panel:
In short, by and large, I think that the criticism of the automotive bankruptcy
cases does not stand up to careful scrutiny. In the future, Congress may choose to
581
Roe, Mark J. and Skeel, David A., Assessing the Chrysler Bankruptcy (August 12, 2009). U of Penn
Law School, Public Law Research Paper No. 09-17; U of Penn, Inst for Law & Econ Research Paper No. 09-22.
Available at SSRN: ssrn.com/abstract=1426530.
188
consider the policy implications of a chapter 11 process that has become heavily
driven by quick asset sales and lender control. But given the reality of current
chapter 11 practice, both GM and Chrysler‟s chapter 11 cases were not all that
exceptional.582
2. Examples that Illustrate the Issues Raised by Professors Adler, Roe and Skeel
The following examples583 illustrate the issues noted above by Professors Adler, Roe and
Skeel:
Example 1. Professor Adler offered the following example in the paper he submitted to
the Panel:
Consider the following illustration, where the government as lender or purchaser
is nowhere to be found. Imagine a simple firm, Debtor, with only two creditors,
each unsecured: Supplier, owed $60, and Bank, owed $20. After Debtor runs out
of working funds and files a bankruptcy petition, Bank offers $40 for all of
Debtor‟s assets (which Bank intends to resell). Bank contends that this is the best
offer Debtor is going to get and that if Debtor does not accept the offer
immediately it will be forced to liquidate piecemeal for $10. The court agrees and
approves the sale over Supplier‟s objection even though there is no auction or
other market test for the value of the assets. After the sale, Debtor moves through
the ordinary bankruptcy process and distributes the $40 proceeds ratably between
Supplier and Bank, with $30 to Supplier and $10 to Bank.
As long as the court is correct to accept Bank‟s valuation, the sale and the
distribution are appropriate. But what if the court is wrong? Assume that
Debtor‟s assets are worth $60. In this case, Supplier should receive $45 and Bank
$15. But the sale and distribution approved by the court has different
consequences. Instead, Bank pays $40 for assets worth $60 (i.e., gains $20) then
582
I don't believe Professor Lubben's testimony is particularly instructive. I concur that Section 363 sales
have become more commonplace, but I'm not sure the significance of that conclusion. He neglects the link between
the procedural error in the bidding process and the sub rosa plan and concludes without support that the error was
harmless.
583
Another example: If a bidder determines that the gross assets of Company X have a fair market value of
$100, the bidder may reasonably enter a bid of up to $100 for the assets ($100 FMV of the assets, less $0 of assumed
liabilities). If the bidding process, however, requires the bidder to assume $20 of the liabilities of the seller, the
bidder may reasonably enter a bid of up to $80 for the assets ($100 FMV of the assets, less $20 of assumed
liabilities). In the latter case the seller only has $80 (not $100) to distribute to its creditors. So, it's possible that a
senior creditor of the seller may not recover its full claim (because a distribution of $80 is insufficient) even though
the claim of the $20 junior creditor that was assumed by the purchaser pursuant to the Section 363 bidding process
may quite likely be paid in full. Due to the required assumption of the $20 claim, $20 of purchase consideration has
been redirected and applied outside the provisions of the bankruptcy code that are charged with
protecting commercial law priority rules and the contractual expectations of the parties.
189
receives a $10 distribution from Debtor‟s bankruptcy estate, for a total effective
distribution of $30, half the true value of Debtor‟s assets, twice the amount to
which it is entitled. All this while, as a formal matter, it is correct to say, as the
courts did in Chrysler and GM, that the sale proceeds were distributed fairly
among the creditors. The problem, of course, is not with the distribution of sale
proceeds received; the problem is with the diversion of value to the purchaser,
which paid the estate too little and thus, in its role as a creditor, received too
much. This is Supplier‟s complaint in this illustration and the dissenting
creditors‟ complaint in the Chrysler and General Motors case.
In this illustration, an auction would solve the problem – because a bidder would
offer $60 foiling Bank‟s scheme – as would granting Supplier a veto over the sale
to reflect its dominant position in what would be the unsecured creditor (and only)
class were the proposed distribution part of a reorganization plan. With neither
protection in place, Supplier is left to suffer the consequences of judicial error,
which can occur no matter how skilled or well meaning the judge; skilled and
well meaning are not synonymous with omniscient.
As Mark Roe and David Skeel observe in their own criticism of the Chrysler
bankruptcy, the ability of a court to approve an untested sale at the behest of some
creditors over the objection of others without the safeguards prescribed by the
Bankruptcy Code returns us to a past centuries‟ practice referred to as the equity
receivership, where it was widely believed that powerful, favored creditors
routinely victimized the weak and unconnected.584 The Chrysler and General
Motors cases are a step back and in the wrong direction.
Example 2. Assume Oldco (i.e., Old Chrysler or Old GM) has (i) assets with a fair market
value (FMV) of $70, (ii) secured debt (with liens on $40 FMV of assets) in an outstanding
principal amount of $90 held by Creditor 1, and (iii) unsecured debt in an outstanding principal
amount of $50 held by Creditor 2. Creditor 1 in effect holds two claims, a $40 secured claim
(equal to the FMV of the assets securing Creditor 1‟s claim) and a $50 unsecured claim (which
together equal Creditor 1‟s total claim of $90); and Creditor 2 holds a $50 unsecured claim. Any
distribution on the unsecured claims should be shared 50/50% (because each creditor holds a $50
unsecured claim) under the "no unfair discrimination" rule of Chapter 11.
If, in a Section 363 sale, Newco (i.e., New Chrysler or New GM) purchased the Oldco
assets (with no assumption of Oldco liabilities) for $70 FMV, then the $70 cash proceeds would
be distributed as follows: Creditor 1 would receive $55 ($40 secured position, plus $15
unsecured position), and Creditor 2 would receive $15.
584
See Roe & Skeel, cited in note 7; see also David A. Skeel, Jr., Debt‟s Dominion: A History of
Bankruptcy Law in America 48-70 (2001) (describing the equity receivership and its faults).
190
Conversely, if in the Section 363 sale the bankruptcy court required Newco to assume
Creditor 2's debt of $50, then Newco would only pay $20 cash for the Oldco assets ($70 FMV of
assets, less $50 required assumption of Creditor 2's debt). In such event, Creditor 1 would only
receive $20 (representing 100% of the cash sales proceeds from the Section 363 sale, but leaving
a shortfall of $70 ($90, less $20)). Creditor 2 would receive no proceeds from the Section 363
sale, but would quite possibly receive $50 in the future from Newco (the amount of Creditor 2's
debt assumed by Newco).
Thus, without the required assumption of the $50 claim by Newco, Creditor 1 (the senior
creditor) would receive $55 and Creditor 2 (the junior creditor) would receive $15. This result is
consistent with commercial law principles and the contractual expectations of the parties. With
the required assumption, however, Creditor 1 would only receive $20 and Creditor 2 would
receive $50. The required assumption results in a shift of $35 from Creditor 1 to Creditor 2, a
result that is not consistent with commercial law principles, the contractual expectations of the
parties and the Chapter 11 reorganization rules.
Example 3. If the FMV of the Oldco assets was only $30 (instead of $70), is it possible
that Newco would pay $30 cash for the assets AND assume Creditor 2's debt of $50. Creditor 1
would, thus, receive $30 (representing 100% of the cash sales proceeds from the Section 363
sale, but leaving a shortfall of $60 ($90 outstanding principal balance, less $30)), and Creditor 2
would quite possibly receive $50 in the future from Newco (the amount of Creditor 2's debt
assumed by Newco). No buyout group (other than one that legally controls the printing press–
the United States government) would agree to pay full FMV for Oldco's assets AND assume
Oldco's liabilities. A solvent buyout group might very well agree to pay FMV for the Oldco
assets but would generally expect a dollar-for-dollar purchase price reduction for any liabilities
assumed.
Newco may argue that since it paid $30 FMV for the Oldco assets it discharged its
obligations under Section 363. Newco may further argue that it's of no concern to Creditor 1 that
Newco also elected to assume Creditor 2's debt.
In response, Creditor 1 may argue that (i) another purchaser might have paid, for
example, $35 or more for the Oldco assets (with no assumption of Creditor 2's debt), (ii) another
purchaser (other than the United States government) would never have paid $30 FMV for the
Oldco assets AND assumed Creditor 2's debt (and that any such requirement would have chilled
the bidding process),585 (iii) without a market auction or compliance with the applicable
Revlon/Lyondell standards established by the Delaware courts, it's impossible to know if $30 or
$35 or another amount represents the true FMV of the Oldco assets (with no assumption of
585
A purchaser may conclude, however, that it‟s in its best interest to assume some of Creditor 2‟s debt.
191
Creditor 2's debt),586 and (iv) to the extent the true FMV of the Oldco assets exceeds $30, Newco
redirected its purchase price away from Creditor 1 to Creditor 2 by using funds to assume
Creditor 2's debt that would have ordinarily been used to purchase the Oldco assets.
586
As noted in Professor Adler‟s proposed legislative fix to the problems created by the Chrysler and GM
cases (discussed below), it‟s important that the bidding procedures approved by the courts not require potential
purchasers to assume some or all of Oldco‟s indebtedness to Creditor 2.
192
Section Three: Correspondence with Treasury Update
On behalf of the Panel, Chair Elizabeth Warren sent a letter on July 20, 2009,587 to
Secretary of the Treasury Timothy Geithner and Federal Reserve Board Chairman Ben Bernanke
requesting copies of confidential memoranda of understanding involving informal supervisory
actions entered into by the Federal Reserve Board and the Office of the Comptroller of the
Currency with Bank of America and Citigroup. The letter further requests copies of any similar
future memoranda of understanding executed with Bank of America, Citigroup, or any other
bank holding companies that were subject to the Supervisory Capital Assessment Program
(SCAP). Finally, the letter asks that the Panel be apprised of any other confidential agreements
relating to risk and liquidity management that Treasury, or any of the bank supervisors, has or
will enter into with any of the SCAP bank holding companies. Secretary Geithner responded on
August 12, 2009.588 The Panel has not received a response from Chairman Bernanke.
587
See Appendix I of this report, infra.
588
See Appendix II of this report, infra.
193
Section Four: TARP Updates since Last Report
A. TARP Repayment
Since the Panel‟s prior report, additional banks have repaid their TARP investment under
the Capital Purchase Program (CPP). CVB Financial Corp. repaid $97,500,000 in TARP funds.
Bank of Commerce repaid $12,500,000 in TARP funds. As of August 28, 2009, neither has
repurchased their warrants. A total of 37 banks have repaid their preferred stock TARP
investment provided under the CPP to date. Of these banks, 22 have repurchased the warrants as
well.
B. CPP Monthly Lending Report
Treasury releases a monthly lending report showing loans outstanding at the top 20 CPP
recipient banks. The most recent report, issued on August 17, 2009, includes data up through the
end of June 2009 and shows that CPP recipients had $4.29 trillion in loans outstanding as of June
2009. This represents a 1.1 percent decline in loans outstanding between the end of May and the
end of June.
C. Regulatory Reform Proposals
On August 11, 2009, the Obama Administration sent a legislative proposal to Congress
which seeks to regulate over-the-counter (OTC) derivatives. The proposed legislation will
require standardized OTC derivatives to be centrally cleared by a derivatives clearing
organization regulated by the Commodities Futures Trading Commission (CFTC) or a securities
clearing agency regulated by the Securities and Exchange Commission (SEC). The proposed
legislation would also require standardized OTC derivatives to be traded on a CFTC- or SECregulated exchange or a CFTC- or SEC-regulated alternative swap execution facility, as well as
higher capital and margin requirements for non-standardized derivatives. In addition, the
proposal seeks to allow financial regulatory agencies access to confidential information on OTC
derivative transactions and open market positions, require supervision and regulation of any firm
that deals in OTC derivatives and any other firm that takes large positions in OTC derivatives.
The proposal would require the SEC, CFTC, and federal banking regulators to supervise and
regulate all OTC derivatives dealers and major market participants within their respective
jurisdictions. The SEC, CFTC, and federal banking regulators would create and enforce margin
and capital requirements for all OTC derivatives dealers and major market participants. The SEC
and the CFTC would also issue and enforce strong business conduct, reporting, and
recordkeeping (including audit trail) rules for all OTC derivative dealers and major market
participants, as well as limit the number of investors eligible to engage in OTC derivative
transactions. Finally, the proposal would grant the SEC and CFTC authority to set position
194
limits and large trader reporting requirements for OTC derivatives and to deter market
manipulation, fraud, insider trading, and other abuses in the OTC derivative markets.
D. Term Asset-Backed Securities Loan Facility (TALF)
On August 17, 2009, the Federal Reserve Board and Treasury announced their approval
of an extension to the Term Asset-Backed Securities Loan Facility (TALF). With the extension,
the deadline for TALF lending against newly issued asset-backed securities (ABS) and legacy
commercial mortgage-backed securities (CMBS) was extended from December 31, 2009 to
March 31, 2010. Additionally, the deadline for TALF lending against newly issued CMBS was
extended to June 30, 2010.
Also on August 17, 2009, the Federal Reserve Board and Treasury announced that they
are holding in abeyance any further expansion in the types of collateral eligible for the TALF.
The securities already eligible for collateralizing TALF loans include the major types of newly
issued, triple-A-rated ABS backed by loans to consumers and businesses, and newly issued and
legacy triple-A-rated CMBS. Nevertheless, the Federal Reserve and Treasury have indicated
that they are prepared to reconsider their decision if financial or economic developments indicate
that providing TALF financing for investors‟ acquisitions of additional types of securities is
warranted.
At the August 20, 2009 facility, $2.15 billion in legacy CMBS were settled (though $2.3
billion in loans were requested). At the September 3, 2009 non-CMBS facility, $6.5 billion in
loans were requested to support the issuance of ABS collateralized by loans in the auto, credit
card, equipment, property and casualty, small business, and student loan sectors. There were no
requests supported by floorplan or residential mortgage loans.
E. Making Home Affordable Program Monthly Servicer Performance Report
On August 4, 2009, the Treasury released its first monthly Servicer Performance Report
detailing the progress to date of the Making Home Affordable (MHA) loan modification
program. The report discloses that as of July 31, 2009, 85 percent of mortgages are covered by a
Home Affordable Modification Program (HAMP) participating servicer. The report also
indicates that as of July 31, 2009, 230,000 trial loan modifications have occurred out of 406,542
trial plan offers extended.
F. Metrics
The Panel continues to monitor a variety of financial market indicators that provide
insight into the current economic conditions. In recent months, the Panel‟s oversight reports
have highlighted a number of metrics that the Panel and others, including Treasury, Government
Accountability Office (GAO), Special Inspector General for the Troubled Asset Relief Program
(SIGTARP), and the Financial Stability Oversight Board consider useful in assessing the
195
effectiveness of the Administration‟s efforts to restore financial stability and accomplish the
goals of the EESA. This section discusses changes that have occurred in several indicators since
the release of the Panel‟s August report.

Interest Rate Spreads. Key interest rate spreads have continued to flatten since the
Panel‟s August report. Numerous officials have cited tightening credit spreads as a sign
of the improving economy. 589 It is of particular note that the 3 Month LIBOR-OIS
spread, an important measure of the cost of capital, has nearly rebounded to its pre-crisis
level of .09 in January 2007.590
Figure 12: Interest Rate Spreads
Indicator
Current
Percent Change
Spread
Since Last Report
(as of
(8/05/09)
8/31/09)
3 Month LIBOR-OIS Spread591
0.17
-37.04%
1 Month LIBOR-OIS Spread592
0.09
0%
TED Spread593 (in basis points)
20.75
-29.08%
Conventional Mortgage Rate Spread594
1.66
5.06%
589
Herbert Allison COP Testimony, supra note 470. Allison noted that “[t]here are tentative signs that the
financial system is beginning to stabilize and that our efforts have made an important contribution. Key indicators
of credit market risk, while s till elevated, have dropped substantially.”
590
3 Mo LIBOR-OIS Spread, Bloomberg (online at www.bloomberg.com/apps/quote?ticker=.LOIS3:IND|)
(accessed Aug. 31, 2009).
591
592
593
TED Spread, Bloomberg (online at www.bloomberg.com/apps/quote?ticker=.TEDSP:IND) (accessed
Aug. 31, 2009).
594
Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected
Interest Rates: Historical Data (Instrument: Conventional Mortgages, Frequency: Weekly) (accessed July 9, 2009)
(online at www.federalreserve.gov/releases/h15/data/Weekly_Thursday_/H15_MORTG_NA.txt); Board of
Governors of the Federal Reserve System, Federal Reserve Statistical Release H.15: Selected Interest Rates:
Historical Data (Instrument: U.S. Government Securities/Treasury Constant Maturities/Nominal 10-Year,
Frequency: Weekly) (accessed July 9, 2009) (online at
www.federalreserve.gov/releases/h15/data/Weekly_Friday_/H15_TCMNOM_Y10.txt) (hereinafter “Fed H.15 10Year Treasuries”).
196
Indicator
Current
Percent Change
Spread
Since Last Report
(as of
(8/05/09)
8/31/09)
Corporate AAA Bond Spread595
1.76
1.73%
Corporate BAA Bond Spread596
3.08
-4.94%
Overnight AA Asset-backed Commercial Paper Interest Rate
Spread597
0.24
14.29%
Overnight A2/P2 Nonfinancial Commercial Paper Interest Rate
Spread598
0.16
-11.11%

Commercial Paper Outstanding. Commercial paper outstanding, a rough measure of
short-term business debt, is an indicator of the availability of credit for enterprises.
While asset-backed commercial paper outstanding had a modest increase since the last
report, the total outstanding is still more than 55 percent below its level in January
2007.599 Financial commercial paper outstanding increased in June, leaving the measure
less than 20 percent below its January 2007 level.600
595
Interest Rates: Historical Data (Instrument: Corporate Bonds/Moody‟s Seasoned AAA, Frequency: Weekly) (online
at www.federalreserve.gov/releases/h15/data/Weekly_Friday_/H15_AAA_NA.txt) (accessed Aug. 31, 2009); Fed
H.15 10-Year Treasuries, supra note 594.
596
Interest Rates: Historical Data (Instrument: Corporate Bonds/Moody‟s Seasoned BAA, Frequency: Weekly) (online
at www.federalreserve.gov/releases/h15/data/Weekly_Friday_/H15_BAA_NA.txt) (accessed Aug. 31, 2009); Fed
H.15 10-Year Treasuries, supra note 594.
597
Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release: Commercial
Paper Rates and Outstandings: Data Download Program (Instrument: AA Asset-Backed Discount Rate, Frequency:
Daily) (online at www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed July 9, 2009); Board of
Governors of the Federal Reserve System, Federal Reserve Statistical Release: Commercial Paper Rates and
Outstandings: Data Download Program (Instrument: AA Nonfinancial Discount Rate, Frequency: Daily) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed Aug. 31, 2009) (hereinafter “Fed CP AA
Nonfinancial Rate”).
598
Paper Rates and Outstandings: Data Download Program (Instrument: A2/P2 Nonfinancial Discount Rate,
Frequency: Daily) (online at www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (accessed Aug. 31,
2009); Fed CP AA Nonfinancial Rate, supra note 597.
599
Paper Rates and Outstandings: Data Download Program (Instrument: Asset-Backed Commercial Paper
Outstanding, Frequency: Weekly) (accessed Aug. 31, 2009) (online at
197
Figure 13: Commercial Paper Outstanding
Current Level (as
of 8/31/09) (dollars
billions)
Percent Change Since Last
Report (8/05/09)
Asset-Backed Commercial Paper
Outstanding (seasonally adjusted)601
$457.8
4.56%
Financial Commercial Paper
$579.7
12.03%
Nonfinancial Commercial Paper
$116.7
-5.66%
Indicator

Lending by the Largest TARP-recipient Banks. Treasury‟s Monthly Lending and
Intermediation Snapshot tracks loan originations and average loan balances for the 21
largest recipients of CPP funds across a variety of categories, ranging from mortgage
loans to commercial and industrial loans to credit card lines. Originations increased
across nearly all categories of bank lending in June when compared to May.604 Lenders
surveyed by Treasury attribute this increase to attractive rates that increased mortgage
originations.605 The return of mortgage originations to October 2008 levels is due in
large measure to the increase in mortgage refinancings, which comprise over 63 percent
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (hereinafter “Fed CP and Asset-Backed Commercial
Paper Outstanding”).
600
Paper Rates and Outstandings: Data Download Program (Instrument: Financial Commercial Paper Outstanding,
Frequency: Weekly) (accessed Aug. 31, 2009) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP) (hereinafter “Fed CP and Financial CP
Outstanding”).
601
Fed CP and Asset-Backed Commercial Paper Oustanding, supra note 599.
602
Fed CP and Financial CP, supra note 600.
603
Paper Rates and Outstandings: Data Download Program (Instrument: Nonfinancial Commercial Paper
Outstanding, Frequency: Weekly) (accessed Aug. 31, 2009) (online at
www.federalreserve.gov/DataDownload/Choose.aspx?rel=CP).
604
U.S. Department of the Treasury, Treasury Department Monthly Lending and Intermediation Snapshot
Data for October 2008 - April 2009 (Aug. 31, 2009) (online at
http://www.financialstability.gov/docs/surveys/Snapshot_Data_June%202009.xls).
605
U.S. Department of the Treasury, Treasury Department Monthly Lending and Intermediation Snapshot:
Summary Analysis for June 2009 (Aug. 31, 2009) (online at
http://www.financialstability.gov/docs/surveys/SnapshotAnalysisJune2009.pdf).
198
of mortgage originations since that date.606 The noticeable increases in commercial,
industrial, and commercial real estate originations are particularly noteworthy, with
originations in both categories increasing by over 20 percent.607 Average loan balances
decreased by one percent from June to May, with banks reporting that borrowers are
paying down existing debt.608 The data below exclude lending by two large CPPrecipient banks, PNC Bank and Wells Fargo, because significant acquisitions by those
banks since last October make comparisons difficult.
Figure 14: Lending by the Largest TARP-recipient Banks609
Most Recent Data
(June 2009) (in
millions)
Percent Change
Since May 2009
Percent Change
Since October
2008
Total Loan Originations
$226,898
13.28%
4.00%
Mortgage Total Originations
$89,703
15.31%
102.53%
Commercial Real Estate
New Commitments
$3,701
24.6%
-64.83%
Commercial & Industrial
New Commitments
$40,978
22.4%
-30.5%
$3,311,902
-0.76%
-3.24%
Indicator
Total Average Loan
Balances

Loans and Leases Outstanding of Domestically-Chartered Banks. Weekly data from
the Federal Reserve Board track fluctuations among different categories of bank assets
and liabilities. The Federal Reserve Board data are useful because they separate out large
domestic banks and small domestic banks. Loans and leases outstanding for large and
small domestic banks both fell last month.610 However, total loans and leases outstanding
606
Id.
607
Id.
608
Id.
609
Id.
610
Board of Governors of the Federal Reserve System, Federal Reserve Statistical Release H.8: Assets and
Liabilities of Commercial Banks in the United States: Historical Data (Instrument: Assets and Liabilities of Large
Domestically Chartered Commercial Banks in the United States, Seasonally adjusted, adjusted for mergers, billions
of dollars) (accessed Aug. 31, 2009) (online at www.federalreserve.gov/releases/h8/data.htm).
199
at small domestic banks remain near last October‟s level, while total loans and leases
outstanding at large banks have dropped by over 6.7 percent since that time.611
Figure 15: Loans and Leases Outstanding612
Current Level
(as of 8/31/09)
(in billions)
Percent Change
Since Last Report
(8/5/09)
Percent Change
Since EESA Signed
into Law (10/3/08)
Large Domestic Banks - Total
Loans and Leases
$3,780
-1.13%
-6.73%
Small Domestic Banks - Total
Loans and Leases
$2,496
-.86%
-.87%
Indicator

Housing Indicators. Foreclosure filings increased by roughly seven percent from May
to June and are roughly 25 percent above the level of last October. Housing prices, as
measured by the S&P/Case-Shiller Composite 20 Index, increased slightly in June. The
index remains down over 10 percent percent since October 2008.
Figure 16: Housing Indicators
Indicator
Monthly Foreclosure Filings613
Housing Prices - S&P/Case-Shiller
Composite 20 Index614
611
Id.
612
Id.
Most
Percent Change From Data
Recent
Available at Time of Last
Monthly
Report (8/5/09)
Data
Percent
Change
Since
October
2008
360,149
7.13%
28.8%
141.3
.86%
-10.05%
613
RealtyTrac, Foreclosure Activity Press Releases (accessed Aug. 31, 2009) (online at
www.realtytrac.com//ContentManagement/PressRelease.aspx). The most recent data available is for July 2009.
614
Standard & Poor‟s, S&P/Case-Shiller Home Price Indices (Instrument: Seasonally Adjusted Composite
20 Index) (accessed Aug. 31, 2009) (online at
www2.standardandpoors.com/spf/pdf/index/SA_CSHomePrice_History_082562.xls). The most recent data
available is for June 2009.
200
G. Financial Update
Each month since its April oversight report, the Panel has summarized the resources that
the federal government has committed to economic stabilization. The following financial update
provides: (1) an updated accounting of the TARP, including a tally of dividend income and
repayments the program has received as of July 31, 2009; and (2) an update of the full federal
resource commitment as of August 28, 2009.
1. TARP
a. Costs: Expenditures and Commitments615
Treasury is currently committed to spend $531.2 billion of TARP funds through an array
of programs used to purchase preferred shares in financial institutions, offer loans to small
businesses and automotive companies, and leverage Federal Reserve loans for facilities designed
to restart secondary securitization markets.616 Of this total, $369.5 billion is currently
outstanding under the $698.7 billion limit for TARP expenditures set by EESA, leaving $329.2
billion available for fulfillment of anticipated funding levels of existing programs and for
funding new programs and initiatives. The $369.5 billion includes purchases of preferred and
common shares, warrants and/or debt obligations under the CPP, TIP, SSFI Program, and AIFP;
a $20 billion loan to TALF LLC, the special purpose vehicle (SPV) used to guarantee Federal
Reserve TALF loans; and the $5 billion Citigroup asset guarantee, which was exchanged for a
guarantee fee composed of additional preferred shares and warrants and has subsequently been
exchanged for Trust Preferred shares.617 Additionally, Treasury has allocated $21.5 billion to the
Home Affordable Modification Program, out of a projected total program level of $50 billion.
b. Income: Dividends, Interest Payments, and CPP Repayments
A total of 32 institutions have completely repaid their CPP preferred shares, 22 of which
have also repurchased warrants for common shares that Treasury received in conjunction with its
preferred stock investments. The rapid pace of preferred shares and warrant repayments has
slowed considerably since the issuance of the Panel‟s August report – out of a total preferred
shares and warrant repayment of $70.3 billion, only $200 million has been repaid since July 29,
2009.618 In addition, Treasury is entitled to dividend payments on preferred shares that it has
615
Treasury will release its next tranche report when transactions under the TARP reach $450 billion.
616
EESA, as amended by the Helping Families Save Their Homes Act of 2009, limits Treasury to $698.7
billion in purchasing authority outstanding at any one time as calculated by the sum of the purchases prices of all
troubled assets held by Treasury. EESA § 115(a)-(b), supra note 2; Helping Families Save Their Homes Act of
2009, Pub. L. 111-22, § 402(f) (reducing by $1.26 billion the authority for the TARP originally set under EESA at
$700 billion).
617
August 28 TARP Transactions Report, supra note 102.
618
August 28 TARP Transactions Report, supra note 102.
201
purchased, usually five percent per annum for the first five years and nine percent per annum
thereafter.619 Treasury has begun to report dividend payments made by all TARP recipients. In
addition to $7.3 billion in dividend payments, Treasury has received $206 million in interest
from its assistance provided under the AIFP and over $2 million in interest stemming from the
ASSP. In total, the Treasury has received approximately $85 billion in income from repayments,
warrant repurchases, dividends, and interest payments deriving from TARP investments.620
c. Citigroup Exchange
Treasury has invested a total of $49 billion in Citigroup through three separate programs:
the CPP, TIP, and AGP. As noted in the Panel‟s March report, Treasury announced on February
27, 2009 that it would convert up to $25 billion of its preferred stock holdings in Citigroup into
common stock, which would provide additional tangible common equity for Citigroup. On June
9, 2009, Treasury agreed to terms to exchange its CPP preferred stock holdings for 7.7 billion
shares of common stock priced at $3.25/share (for a total value of $25 billion) and also agreed to
convert the form of its TIP and AGP holdings.
On July 23, 2009, Treasury, along with both public and private Citigroup debt holders,
participated in a $58 billion exchange, which resulted in the conversion of Treasury‟s $25 billion
CPP investment from preferred shares to interim securities to be converted to common shares
upon shareholder approval of a new common stock issuance. The $25 billion exchange
substantially dilutes the equity holdings of existing Citigroup shareholders and was subject to
shareholder approval on September 2, 2009. Treasury‟s common stock investment in Citigroup,
when finalized, will have a paper value of about $34.96 billion based on the company‟s
September 1, 2009 $5.54 share price.621 On July 30, Treasury exchanged its $20 billion of
preferred stock holdings in Citigroup under the TIP and its $5 billion investment in the AGP622
from preferred shares to Trust Preferred Securities (TruPS). The conversion allows Citigroup to
improve its Tangible Common Equity ratio – a key measure of bank solvency and a component
of the stress tests – 60 percent623
619
See, for example, U.S. Department of the Treasury, Securities Purchase Agreement: Standard Terms
(online at www.financialstability.gov/docs/CPP/spa.pdf).
620
U.S. Department of the Treasury, Cumulative Dividends Report as of July 31, 2009 (Sep. 2, 2009)
(online at www.financialstability.gov/docs/dividends-interest-reports/072009_report.pdf).
621
The Panel continues to account for Treasury‟s original $25 billion CPP investment in Citigroup under
the CPP until formal approval of the exchange by Citigroup‟s shareholders and until Treasury specifies under which
TARP program the common equity investment will be classified.
622
The AGP provides certain loss protections to select pools of mortgage or related assets held by financial
institutions viewed as critical to the functioning of the financial system, and whose portfolios of distressed or illiquid
assets pose a risk to market confidence. Similar to a typical insurance plan, Treasury insures these assets by
providing guarantees or non-recourse loans with respect to the assets in exchange for a premium paid by the
institution in preferred stock.
623
The key components of the old and new TIP and AGP financial agreements between Citigroup and
Treasury, including the amount outstanding and the coupon rate (8 percent), are essentially the same. U.S.
202
d. TARP Accounting
Figure 17: TARP Accounting (as of July 31, 2009)
TARP Initiative
(in billions)
Anticipated
Funding
Purchase
Price
Repayments
Net Current
Investments
Net
Available
Total
$531.3
$444.1
$72.4
$369.5
$329.2624
CPP
$218
$204.3
$70.3
$134.2
$13.7625
TIP
$40
$40
$0
$40
$0
SSFI Program
$69.8
$69.8
$0
$69.8
$0
AIFP
$80
$80
$2.1
$75.5626
$0627
AGP
$5
$5
$0
$5
$0
CAP
TBD
$0
N/A
$0
N/A
TALF
$20
$20
$0
$20
$0
PPIP
$30
$0
N/A
$0
$30
Department of Treasury, Transaction Outline (Feb. 27, 2009) (online at
www.treas.gov/press/releases/reports/transaction_outline.pdf).
624
This figure is the summation of the uncommitted funds remaining under the $698.7 billion cap ($167.4
billion) and the difference between the total anticipated funding and the net current investment ($168.8 billion).
625
This figure reflects the repayment of $70.3 billion in CPP funds. Secretary Geithner has suggested that
funds from CPP repurchases will be treated as uncommitted funds upon return to the Treasury. This Week with
George Stephanopoulos, Interview with Secretary Geithner, ABC (Aug. 2, 2009) (online at
www.abcnews.go.com/print?id=8233298) (“[W]hen I was here four months ago, we had roughly $40 billion of
authority left in the TARP. Today we have roughly $130 billion, in partly [sic] because we have been very
successful in having private capital come back into this financial system. And we‟ve had more than $70 billion ...
come back into the government”). The Panel has therefore presented the repaid CPP funds as uncommitted (i.e.,
generally available for the entire spectrum of TARP initiatives). The difference between the $130 billion of funds
available for future TARP initiatives cited by Secretary Geithner and the $239.8 billion calculated as available here
is the Panel‟s decision to classify certain funds originally provisionally allocated to TALF and PPIP as uncommitted
and available for TARP generally. See infra notes xiv and xvi.
626
This figure reflects the amount invested in the AIFP as of August 18, 2009. This number consists of the
original assistance amount of $80 billion subtracted by de-obligations ($2.4 billion) and repayments ($2.1 billion),
$2.4 billion in apportioned funding has been de-obligated by Treasury ($1.91 billion of the available $3.8 billion of
DIP financing to Chrysler and a $500 million loan facility dedicated to Chrysler that was unused). U.S. Department
of Treasury, TARP Transactions Report (Aug. 26, 2009).
627
Treasury has indicated that it will not provide additional assistance to GM and Chrysler through the
AIFP. Nick Bunkley August 5 New York Times Report, supra note 80. The Panel therefore considers the repaid and
de-obligated AIFP funds to be uncommitted TARP funds.
203
TARP Initiative
(in billions)
Anticipated
Funding
Purchase
Price
Repayments
Net Current
Investments
Net
Available
Supplier Support
Program
$3.5628
$3.5
$0
$3.5
$0629
Unlocking SBA
Lending
$15
$0
N/A
$0
$15
HAMP
$50
$21.5630
$0
$21.5
$28.5
(Uncommitted)
$167.4
N/A
N/A
N/A
$242.2631
628
On July 8, 2009, Treasury lowered the total commitment amount for the program from $5 billion to $3.5
billion, this reduced GM‟s portion from $3.5 billion to $2.5 billion and Chrysler‟s portion from $1.5 billion to $1
billion. August 28 TARP Transactions Report, supra note 102.
629
Treasury has indicated that it will not provide additional funding to auto parts suppliers through the
Supplier Support Program. Nick Bunkley August 5 New York Times Report, supra note 80.
630
This figure reflects the total of all the caps set on payments to each mortgage servicer. August 28
Transactions Report, supra note 102.
631
This figure is the summation of the uncommitted funds remaining under the $698.7 billion cap ($167.4
billion), the repayments ($72.4 billion), and the de-obligated portion of the AIFP ($2.4 billion). Treasury provided
de-obligation information in response to specific inquiries relating to the Panel‟s oversight of the AIFP. Treasury
provided the Panel with information regarding specific investments made under the AIFP on August 18, 2009.
Specifically, this information denoted allocated funds that had since been do-obligated. (hereinafter “Treasury Deobligation Document”).
204
Figure 18: TARP Repayments and Income (as of August 28, 2009)
TARP Initiative
(in billions)
Repayments
Dividends632
Warrant
Repurchases633
Total
Total
$72.4
$9.1
$2.9
$84.6634
CPP
$70.3
$7.3
$2.9
$80.5
TIP
$0
$1.5
$0
$1.5
AIFP
$2.1
$.16
N/A
$2.46
AGP
$0
$.17
$0
$.17
2. Other Financial Stability Efforts
Federal Reserve, FDIC, and Other Programs
In addition to the direct expenditures Treasury has undertaken through TARP, the federal
government has engaged in a much broader program directed at stabilizing the U.S. financial
system. Many of these initiatives explicitly augment funds allocated by Treasury under specific
TARP initiatives, such as FDIC and Federal Reserve asset guarantees for Citigroup, or operate in
tandem with Treasury programs, such as the interaction between PPIP and TALF. Other
programs, like the Federal Reserve‟s extension of credit through its section 13(3) facilities and
SPVs and the FDIC‟s Temporary Liquidity Guarantee Program, operate independent of TARP.
3. Total Financial Stability Resources (as of August 28, 2009)
Beginning in its April report, the Panel broadly classified the resources that the federal
government has devoted to stabilizing the economy through a myriad of new programs and
initiatives as outlays, loans, or guarantees. Although the Panel calculates the total value of these
resources at over $3.1 trillion, this would translate into the ultimate “cost” of the stabilization
effort only if: (1) assets do not appreciate; (2) no dividends are received, no warrants are
632
U.S. Department of the Treasury, Cumulative Dividends Report as of July 31, 2009 (Sep. 2, 2009)
(online at www.financialstability.gov/docs/dividends-interest-reports/072009_report.pdf).
633
This number includes $1.6 million in proceeds from the repurchase of preferred shares by privately-held
financial institutions. For privately-held financial institutions that elect to participate in the CPP, Treasury receives
and immediately exercises warrants to purchase additional shares of preferred stock. August 28 Transactions
Report, supra note 102.
634
This includes interest payments made by recipients under the ASSP ($2 million) and AIFP ($200
million).
205
exercised, and no TARP funds are repaid; (3) all loans default and are written off; and (4) all
guarantees are exercised and subsequently written-off.
With respect to the FDIC and Federal Reserve programs, the risk of loss varies
significantly across the programs considered here, as do the mechanisms providing protection for
the taxpayer against such risk. The FDIC, for example, assesses a premium of up to 100 basis
points on Temporary Liquidity Guarantee Program (TLGP) debt guarantees. The premiums are
pooled and reserved to offset losses incurred by the exercise of the guarantees, and are calibrated
to be sufficient to cover anticipated losses and thus remove any downside risk to the taxpayer. In
contrast, the Federal Reserve‟s liquidity programs are generally available only to borrowers with
good credit, and the loans are over-collateralized and with recourse to other assets of the
borrower. If the assets securing a Federal Reserve loan realize a decline in value greater than the
“haircut,” the Federal Reserve is able to demand more collateral from the borrower. Similarly,
should a borrower default on a recourse loan, the Federal Reserve can turn to the borrower‟s
other assets to make the Federal Reserve whole. In this way, the risk to the taxpayer on recourse
loans only materializes if the borrower enters bankruptcy. The only loans currently
“underwater” – where the outstanding principal amount exceeds the current market value of the
collateral – are the non-recourse loans to the Maiden Lane SPVs (used to purchase Bear Stearns
and AIG assets).
Figure 19: Federal Government Financial Stability Effort (as of August 28, 2009)
Program
(in billions)
Treasury
(TARP)
Federal
Reserve
FDIC
Total
Total
Outlaysi
Loans
Guaranteesii
Uncommitted TARP Funds
$698.7
$388
$40.5
$25
$245.2
$1,630.8
$0
$1401
$229.8
$0
$834.6
$35.6
$0
$799
$0
$3,164.1iii
$423.6
$1441.5
$1053.8
$245.2
AIG
Outlays
Loans
Guarantees
$69.8
$69.8iv
$0
$0
$98
$0
$98v
$0
$0
$0
$0
$0
$167.8
$69.8
$98
$0
Bank of America
Outlays
Loans
Guaranteesvi
$45
$45vii
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$45
$45
$0
$0
206
Program
(in billions)
Treasury
(TARP)
Federal
Reserve
FDIC
Total
Citigroup
Outlays
Loans
Guarantees
$50
$45viii
$0
$5ix
$229.8
$0
$0
$229.8x
$10
$0
$0
$10xi
$289.8
$45
$0
$244.8
Capital Purchase Program
(Other)
Outlays
Loans
Guarantees
$97.7
$0
$0
$97.7
$97.7xii
$0
$0
$0
$0
$0
$0
$0
$0
$97.7
$0
$0
Capital Assistance Program
TBD
$0
$0
TBDxiii
TALF
Outlays
Loans
Guarantees
$20
$0
$0
$20xiv
$180
$0
$180xv
$0
$0
$0
$0
$0
$200
$0
$180
$20
PPIP (Loans)xvi
Outlays
Loans
Guarantees
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
PPIP (Securities)
Outlays
Loans
Guarantees
$30xvii
$12.5
$17.5
$0
$0
$0
$0
$0
$0
$0
$0
$0
$30
$12.5
$17.5
$0
Home Affordable
Modification Program
Outlays
Loans
Guarantees
$50
$0
$0
$50xix
$50xviii
$0
$0
$0
$0
$0
$0
$0
$0
$50
$0
$0
Automotive Industry
Financing Program
Outlays
Loans
Guarantees
$77.5
$0
$0
$77.5
$55.5xx
$22
$0
$0
$0
$0
$0
$0
$0
$55.5
$22
$0
Auto Supplier Support
Program
Outlays
Loans
Guarantees
$3.5
$0
$0
$3.5
$0
$3.5xxi
$0
$0
$0
$0
$0
$0
$0
$0
$3.5
$0
207
Program
(in billions)
Treasury
(TARP)
Federal
Reserve
FDIC
Total
Unlocking SBA Lending
Outlays
Loans
Guarantees
$15
$15xxii
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$15
$15
$0
$0
Temporary Liquidity
Guarantee Program
Outlays
Loans
Guarantees
$0
$0
$789
$789
$0
$0
$0
$0
$0
$0
$0
$0
$789xxiii
$0
$0
$789
Deposit Insurance Fund
Outlays
Loans
Guarantees
$0
$0
$0
$0
$0
$0
$0
$0
$35.6
$35.6xxiv
$0
$0
$35.6
$35.60
$0
$0
Other Federal Reserve Credit
Expansion
Outlays
Loans
Guarantees
$0
$1,123
$0
$1,123
$0
$0
$0
$0
$1,123xxv
$0
$0
$0
$0
$0
$1,123
$0
Uncommitted TARP Funds
$245.2xxvi
$0
$0
$245.2
i
The term “outlays” is used here to describe the use of Treasury funds under the TARP, which are broadly
classifiable as purchases of debt or equity securities (e.g., debentures, preferred stock, exercised warrants, etc.). The
outlays figures are based on: (1) Treasury‟s actual reported expenditures; and (2) Treasury‟s anticipated funding
levels as estimated by a variety of sources, including Treasury pronouncements and GAO estimates. Anticipated
funding levels are set at Treasury‟s discretion, have changed from initial announcements, and are subject to further
change. Outlays as used here represent investments and assets purchases and commitments to make investments and
asset purchases and are not the same as budget outlays, which under section 123 of EESA are recorded on a “credit
reform” basis.
ii
While many of the guarantees may never be exercised or exercised only partially, the guarantee figures
included here represent the federal government‟s greatest possible financial exposure.
iii
This figure is roughly comparable to the $3.0 trillion current balance of financial system support reported
by SIGTARP in its July report. SIGTARP Quarterly Report to Congress, supra note 272, at 138. However, the
Panel has sought to capture additional anticipated exposure and thus employs a different methodology than
SIGTARP.
iv
This number includes investments under the SSFI Program: a $40 billion investment made on November
25, 2008, and a $30 billion investment committed on April 17, 2009 (less a reduction of $165 million representing
bonuses paid to AIG Financial Products employees). August 28 Transactions Report, supra note 102.
v
This number represents the full $60 billion that is available to AIG through its revolving credit facility
with the Federal Reserve ($37.8 billion had been drawn down as of August 28, 2009) and the outstanding principle
of the loans extended to the Maiden Lane II and III SPVs to buy AIG assets (as of August 28, 2009, $16.9 billion
208
and $20.9 billion respectively). Board of Governors of the Federal Reserve System, Federal Reserve Statistical
Release H.4.1: Factors Affecting Reserve Balances (Aug. 27, 2009) (accessed Sep. 2, 2009) (online at
www.federalreserve.gov/releases/h41/Current/) (hereinafter “Fed Balance Sheet August 27”). Income from the
purchased assets is used to pay down the loans to the SPVs, reducing the taxpayers‟ exposure to losses over time.
Board of Governors of the Federal Reserve System, Federal Reserve System Monthly Report on Credit and Liquidity
Programs and the Balance Sheet, at 16-20 (Aug. 2009) (online at
www.federalreserve.gov/monetarypolicy/files/monthlyclbsreport200908.pdf) (hereinafter “Fed August 2009 Credit
and Liquidity Report”).exposure to losses over time. See Board of Governors of the Federal Reserve System,
Federal Reserve System Monthly Report on Credit and Liquidity Programs and the Balance Sheet, at 16-20 (Aug.
2009) (online at www.federalreserve.gov/monetarypolicy/files/monthlyclbsreport200908.pdf).
vi
Beginning in our July report, the Panel excluded from its accounting the $118 billion asset guarantee
agreement among Bank of America, the Federal Reserve, Treasury, and the FDIC based on testimony from Federal
Reserve Chairman that the agreement was never signed and was never signed or consummated and the absence of vi
Beginning in our July report, the Panel excluded from its accounting the $118 billion asset guarantee agreement
among Bank of America, the Federal Reserve, Treasury, and the FDIC based on testimony from Federal Reserve
Chairman that the agreement was never signed and was never signed or consummated and the absence of the
guarantee from Treasury‟s TARP accounting. House Committee on Oversight and Government Reform, Testimony
Federal Reserve Chairman Ben S. Bernanke, Acquisition of Merrill Lynch by Bank of America, 111th Cong., at 3
(June 25, 2009) (online at oversight.house.gov/documents/20090624185603.pdf) (“The ring-fence arrangement has
not been consummated, and Bank of America now believes that, in light of the general improvement in the markets,
this protection is no longer needed.”); Congressional Oversight Panel, July Oversight Report: TARP Repayments,
Including the Repurchase of Stock Warrants, at 85 (July 7, 2009) (online at .cop.senate.gov/documents/cop-071009report.pdf). According to a recent news report, it now appears that the U.S. government is seeking at least $500
million from Bank of America to shelve the tentative agreement. Dan Fitzpatrick, B of A Seeks to Repay a Portion
of Bailout, Wall Street Journal (Sept. 1, 2009) (online at online.wsj.com/article/SB125176546582274505.html). The
account reports the government as taking the position that even though the guarantee deal was never signed, the
government believes that because Bank of America benefited in the marketplace from its implied protection between
from January to May 2009, Bank of AmericaBank of America benefited in the marketplace from its implied
protection between from January to May 2009, Bank of America should be responsible for the payment of
dividendsand other fees, including an program exit fee, associated with the program. Id. While the past and current
status of the program is in some doubt, in the absence of official guidance, the Panel continues to follow Treasury
and exclude it from our accounting, in part because the putative protection offered by the program is no longer in
place. The Panel will include in its accounting premiums or fees, if any, that Bank of America ultimately agrees to
pay the U.S. government in relation to the guarantee program.
vii
August 28 TARP Transactions Report, supra note 102. This figure includes: (1) a $15 billion investment
made by Treasury on October 28, 2008 under the CPP; (2) a $10 billion investment made by Treasury on January 9,
2009 also under the CPP; and (3) a $20 billion investment made by Treasury under the TIP on January 16, 2009.
viii
August 28 TARP Transactions Report, supra note 102. This figure includes: (1) a $25 billion investment
made by Treasury under the CPP on October 28, 2008; and (2) a $20 billion investment made by Treasury under TIP
on December 31, 2008.
ix
U.S. Department of the Treasury, Summary of Terms: Eligible Asset Guarantee (Nov. 23, 2008) (online
at www.treasury.gov/press/releases/reports/cititermsheet_112308.pdf) (hereinafter “Citigroup Asset Guarantee”)
(granting a 90 percent federal guarantee on all losses over $29 billion of a $306 billion pool of Citigroup assets, with
the first $5 billion of the cost of the guarantee borne by Treasury, the next $10 billion by FDIC, and the remainder
by the Federal Reserve). See also U.S. Department of the Treasury, U.S. Government Finalizes Terms of Citi
Guarantee Announced in November (Jan. 16, 2009) (online at www.treas.gov/press/releases/hp1358.htm) (reducing
the size of the asset pool from $306 billion to $301 billion).
x
Citigroup Asset Guarantee, supra note ix.
209
xi
Citigroup Asset Guarantee, supra note ix.
xii
This figure represents the $218 billion Treasury has anticipated spending under the CPP, minus the $50
billion investment in Citigroup ($25 billion) and Bank of America ($25 billion) identified above, and the $70.3
billion in repayments that will be reflected as uncommitted TARP funds. This figure does not account for future
repayments of CPP investments, nor does it account for dividend payments from CPP investments.
xiii
Funding levels for the CAP have not yet been announced but will likely constitute a significant portion
of the remaining $245.2 billion of TARP funds.
xiv
This figure represents a $20 billion allocation to the TALF SPV on March 3, 2009. August 28
Transactions Report, supra note 102. Consistent with the analysis in our August report, see COP August Report,
supra note 317, and the fact that only $43 billion dollars has been lent through TALF as of September 2009, the
Panel continues to predict that TALF subscriptions are unlikely to surpass the $200 billion currently available by
year‟s end.
xv
This number derives from the unofficial 1:10 ratio of the value of Treasury loan guarantees to the value
of Federal Reserve loans under the TALF. U.S. Department of the Treasury, Fact Sheet: Financial Stability Plan
(Feb.10, 2009) (online at www.financialstability.gov/docs/fact-sheet.pdf) (describing the initial $20 billion Treasury
contribution tied to $200 billion in Federal Reserve loans and announcing potential expansion to a $100 billion
Treasury contribution tied to $1 trillion in Federal Reserve loans). Because Treasury is responsible for reimbursing
the Federal Reserve Board for $20 billion of losses on its $200 billion in loans, the Federal Reserve Board‟s
maximum potential exposure under the TALF is $180 billion.
xvi
It now appears unlikely that resources will be expended under the PPIP Legacy Loans Program in its
original design as a joint Treasury-FDIC program to purchase troubled assets from solvent banks. In June, the FDIC
cancelled a pilot sale of assets that would have been conducted under the program‟s original design. Federal Deposit
Insurance Corporation, FDIC Statement on the Status of the Legacy Loans Program (June 3, 2009) (online at
www.fdic.gov/news/news/press/2009/pr09084.html). In July, the FDIC announced that it would rebrand its
established procedure for selling the assets of failed banks as the Legacy Loans Programs. Federal Deposit
Insurance Corporation, Legacy Loans Program – Test of Funding Mechanism (July 31, 2009) (online at
www.fdic.gov/news/news/press/2009/pr09131.html). These sales do not involve any Treasury participation, and
FDIC activity is accounted for here as a component of the FDIC‟s Deposit Insurance Fund outlays.
xvii
U.S. Department of the Treasury, Joint Statement By Secretary of the Treasury Timothy F. Geithner,
Chairman of the Board Of Governors Of The Federal Reserve System Ben S. Bernanke, and Chairman of the
Federal Deposit Insurance Corporation Sheila Bair: Legacy Asset Program (July 8, 2009) (online at
www.financialstability.gov/latest/tg_07082009.html) (“Treasury will invest up to $30 billion of equity and debt in
PPIFs established with private sector fund managers and private investors for the purpose of purchasing legacy
securities.”); U.S. Department of the Treasury, Fact Sheet: Public-Private Investment Program, at 4-5 (Mar. 23,
2009) (online at www.treas.gov/press/releases/reports/ppip_fact_sheet.pdf) (hereinafter “Treasury PPIP Fact Sheet”)
(outlining that, for each $1 of private investment into a fund created under the Legacy Securities Program, Treasury
will provide a matching $1 in equity to the investment fund; a $1 loan to the fund; and, at Treasury‟s discretion, an
additional loan up to $1). In the absence of further Treasury guidance, this analysis assumes that Treasury will
allocate funds for equity co-investments and loans at a 1:1.5 ratio, a formula that estimates that Treasury will
frequently exercise its discretion to provide additional financing.
xviii
GAO, Troubled Asset Relief Program: June 2009 Status of Efforts to Address Transparency and
Accountability Issues, at 2 (June 17, 2009) (GAO09/658) (online at www.gao.gov/new.items/d09658.pdf)
(hereinafter “GAO June 29 Status Report”). Of the $50 billion in announced TARP funding for this program, $21.5
210
billion has been allocated as of August 28, 2009, and no funds have yet been disbursed. August 28 Transactions
Report, supra note 102.
xix
Fannie Mae and Freddie Mac, government-sponsored entities (GSEs) that were placed in
conservatorship of the Federal Housing Finance Housing Agency on September 7, 2009, will also contribute up to
$25 billion to the Making Home Affordable Program, of which the HAMP is a key component. U.S. Department of
the Treasury, Making Home Affordable: Updated Detailed Program Description (Mar. 4, 2009) (online at
www.treas.gov/press/releases/reports/housing_fact_sheet.pdf).
xx
August 28 Transactions Report, supra note 102. A substantial portion of the total $80 billion in loans
extended under the AIFP has since been converted to common equity and preferred shares in restructured
companies. $22 billion has been retained as first lien debt (with $7.7 billion committed to GM and $14.3 billion to
Chrysler). This figure represents Treasury‟s cumulative obligation under the AIFP, the total does not reflect the aid
provided under the Auto Supplier Support Program or any de-obligations or repayments. Treasury De-obligation
Document, supra note 286. See also GAO June 29 Status Report, supra note xviii at 43.
xxi
xxii
Treasury PPIP Fact Sheet, supra note xvii.
xxiii
This figure represents the current maximum aggregate debt guarantees that could be made under the
program, which, in turn, is a function of the number and size of individual financial institutions participating.
$320.1 billion of debt subject to the guarantee has been issued to date, which represents about 41 percent of the
current cap. Federal Deposit Insurance Corporation, Monthly Reports on Debt Issuance Under the Temporary
Liquidity Guarantee Program: Debt Issuance Under Guarantee Program (July 31, 2009) (online at
www.fdic.gov/regulations/resources/tlgp/total_issuance7-09.html) (updated Sep. 2, 2009).
xxiv
This figure represents the FDIC‟s provision for losses to its deposit insurance fund attributable to bank
failures in the third and fourth quarters of 2008 and the first quarter of 2009. Federal Deposit Insurance
Corporation, Chief Financial Officer‟s (CFO) Report to the Board: DIF Income Statement (Fourth Quarter 2008)
(online at www.fdic.gov/about/strategic/corporate/cfo_report_4qtr_08/income.html); Federal Deposit Insurance
Corporation, Chief Financial Officer‟s (CFO) Report to the Board: DIF Income Statement (Third Quarter 2008)
(online at www.fdic.gov/about/strategic/corporate/cfo_report_3rdqtr_08/income.html); Federal Deposit Insurance
Corporation, Chief Financial Officer‟s (CFO) Report to the Board: DIF Income Statement (First Quarter 2009)
(online at www.fdic.gov/about/strategic/corporate/cfo_report_1stqtr_09/income.html). This figure includes the
FDIC‟s estimates of its future losses under loss share agreements that it has entered into with banks acquiring assets
of insolvent banks during these three quarters. Under a loss sharing agreement, as a condition of an acquiring
bank‟s agreement to purchase the assets of an insolvent bank, the FDIC typically agrees to cover 80 percent of an
acquiring bank‟s future losses on an initial portion of these assets and 95 percent of losses of another portion of
assets. See, for example Federal Deposit Insurance Corporation, Purchase and Assumption Agreement Among
FDIC, Receiver of Guaranty Bank, Austin, Texas, FDIC and Compass Bank at 65-66 (Aug. 21, 2009) (online at
www.fdic.gov/bank/individual/failed/guaranty-tx_p_and_a_w_addendum.pdf). The FDIC does not publish
aggregated data on the total amount of assets subject to these agreements and the amount that the FDIC has
guaranteed, and it does not disaggregate anticipated losses from loss share agreement from total losses under the
Deposit Insurance Fund. But, in contrast, see Damian Paletta, Raft of Deals for Failed Banks Puts U.S. on Hook for
Billions, Wall Street Journal (Aug. 31, 2009) (online at http://online.wsj.com/article/SB125166830374670517.html)
(calculating the total insolvent bank assets subject to loss sharing agreements at $80 billion and reporting an FDIC
estimate of the FDIC‟s anticipated losses from its guarantees on these assets at $14 billion).
xxv
This figure is derived from adding the total credit the Federal Reserve Board has extended as of August
27, 2009 through the Term Auction Facility (Term Auction Credit), Discount Window (Primary Credit), Primary
211
Dealer Credit Facility (Primary Dealer and Other Broker-Dealer Credit), Central Bank Liquidity Swaps, loans
outstanding to Bear Stearns (Maiden Lane I LLC), GSE Debt Securities (Federal Agency Debt Securities), Mortgage
Backed Securities Issued by GSEs, Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility,
and Commercial Paper Funding Facility LLC. Fed Balance Sheet August 27, supra note v. The level of Federal
Reserve lending under these facilities will fluctuate in response to market conditions. The Federal Reserve has
earned significant amounts of interest in these lending and purchase programs. Fed August Report on Credit and
Liquidity, supra note v, at 23-24, Tables 30-32 (showing partial income statement for various Federal Reserve
programs, including $1.88 billion interest earned from Jan. 1-June 30, 2009 on Central Bank Liquidity Swaps, $614
million interest earned from Jan. 1-June 30, 2009 on GSE Debt Securities, $4.97 billion interest earned from Jan. 1June 30, 2009 on Mortgage Backed Securities, and $4.18 billion interest earned from Jan. 1-June 30, 2009 under the
CPFF).
xxvi
As discussed in the Panel‟s August report, we do not account for the Temporary Guarantee Program for
Money Market Mutual Funds because it does not involve TARP funds and this program will expire September 18,
2009. August COP Report, supra note 317.
212
Section Five: Oversight Activities
The Congressional Oversight Panel was established as part of the Emergency Economic
Stabilization Act (EESA) and formed on November 26, 2008. Since then, the Panel has
produced nine oversight reports, as well as a special report on regulatory reform, issued on
January 29, 2009, and a special report on farm credit, issued on July 21, 2009. Since the release
of the Panel‟s August oversight report on the continued risk of troubled assets, the following
developments pertaining to the Panel‟s oversight of the Troubled Asset Relief Program (TARP)
took place:

The Panel has received responses to its June 2009 letters to the largest mortgage servicing
companies that had not signed a contract to formally participate in the Making Home
Affordable foreclosure mitigation program. Fourteen of the fifteen servicing companies
responded. These letters will assist the Panel in its evaluation of the foreclosure mitigation
efforts.

The Panel and Panel staff have held meetings with and requested documents from Treasury
regarding the Automobile Industry Financing Program. The information obtained has
assisted the Panel in its preparation of the September report, on the Automobile Industry
Financing Program.
Upcoming Reports and Hearings
The Panel will release its next oversight report in October. The report will provide an
updated review of TARP activities and continue to assess the program‟s overall effectiveness.
The report will also examine the effectiveness of foreclosure mitigation efforts.
The Panel will hold its second hearing with Secretary Geithner on September 10, 2009.
The Secretary has agreed to testify before the Panel once per quarter. His first hearing was on
April 21, 2009.
Additionally, the Panel is planning a field hearing in Philadelphia on September 24, 2009
to hear testimony on foreclosure mitigation efforts.
213
Section Six: About the Congressional Oversight Panel
In response to the escalating crisis, on October 3, 2008, Congress provided Treasury with
the authority to spend $700 billion to stabilize the U.S. economy, preserve home ownership, and
promote economic growth. Congress created the Office of Financial Stabilization (OFS) within
Treasury to implement a Troubled Asset Relief Program. At the same time, Congress created the
Congressional Oversight Panel to “review the current state of financial markets and the
regulatory system.” The Panel is empowered to hold hearings, review official data, and write
reports on actions taken by Treasury and financial institutions and their effect on the economy.
Through regular reports, the Panel must oversee Treasury‟s actions, assess the impact of
spending to stabilize the economy, evaluate market transparency, ensure effective foreclosure
mitigation efforts, and guarantee that Treasury‟s actions are in the best interests of the American
people. In addition, Congress instructed the Panel to produce a special report on regulatory
reform that analyzes “the current state of the regulatory system and its effectiveness at
overseeing the participants in the financial system and protecting consumers.” The Panel issued
this report in January 2009. Congress subsequently expanded the Panel‟s mandate by directing it
to produce a special report on the availability of credit in the agricultural sector. The report was
issued on July 21, 2009.
On November 14, 2008, Senate Majority Leader Harry Reid and the Speaker of the
House Nancy Pelosi appointed Richard H. Neiman, Superintendent of Banks for the State of
New York, Damon Silvers, Associate General Counsel of the American Federation of Labor and
Congress of Industrial Organizations (AFL-CIO), and Elizabeth Warren, Leo Gottlieb Professor
of Law at Harvard Law School to the Panel. With the appointment on November 19 of
Congressman Jeb Hensarling to the Panel by House Minority Leader John Boehner, the Panel
had a quorum and met for the first time on November 26, 2008, electing Professor Warren as its
chair.
ACKNOWLEDGEMENTS
The Panel thanks Professor Steven Lubben, the Daniel J. Moore Professor of Law at
Seton Hall School of Law; and, Professor Barry E. Adler, the Bernard Petrie Professor of Law
and Business and Associate Dean for Information Systems and Technology at New York
University School of Law for their papers discussing the Chrysler and GM bankruptcy cases.
Special thanks also go to Professor Mark J. Roe, the David Berg Professor of Law at Harvard
Law School; Professor David Arthur Skeel, the S. Samuel Arsht Professor of Corporate Law at
University of Pennsylvania Law School; and, Professor Richard A. Fallon, the Ralph S. Tyler
Professor of Constitutional Law at Harvard Law School for reviewing drafts of this report and
providing invaluable comments. The Panel also wishes to express thanks to the following
individuals for their thoughts and suggestions: Edward Altman, Max L. Heine Professor of
214
Finance at the Stern School of Business, New York University; Susan R. Helper, AT&T
Professor of Economics at the Weatherhead School of Management, Case Western Reserve
University; Mr. Howard Wial, Fellow for the Metropolitan Policy Program at the Brookings
Institute; Dr. Sean McAlinden, Vice President for Research and Chief Economist at the Center
for Automotive Research; Professor Clayton S. Rose, Senior Lecturer of Business
Administration at the Harvard Business School; Jonathan Rosenthal, Partner at Saybrook
Capital; Professor Malcolm Salter, James J. Hill Professor of Business Administration, Emeritus,
Harvard Business School; Professor Michael A. Cusumano, Professor at the MIT Sloan School
of Management and Co-director of the International Motor Vehicle Program; and, Mr. Dan
Luria, Research Director at the Michigan Manufacturing and Technology Center.
215
APPENDIX I: LETTER FROM CHAIR ELIZABETH
WARREN TO SECRETARY TIMOTHY GEITHNER AND
CHAIRMAN BEN BERNANKE, RE: CONFIDENTIAL
MEMORANDA, DATED JULY 20, 2009
216
July 20, 2009
The Honorable Timothy F. Geithner
Secretary of the Treasury
United States Department of the Treasury
Room 3330
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
The Honorable Ben S. Bernanke
Chairman
Board of Governors of the Federal Reserve System
20th Street and Constitution Avenue, N.W.
Washington, D.C. 20551
Dear Messrs. Secretary and Chairman:
The Congressional Oversight Panel has learned that the Federal Reserve Board
and the Office of the Comptroller of the Currency have entered into confidential
memoranda of understanding involving informal supervisory actions affecting Bank of
America and Citigroup.
I am writing to request that you furnish to the Panel copies of any such existing
memoranda, as well as copies of any similar future memoranda of understanding
executed with Bank of America, Citigroup, or any of the other bank holding companies
that were subject to the Supervisory Capital Assessment Program. In addition, I ask you
to apprise the Panel of any other confidential agreements relating to risk and liquidity
management that Treasury or any of the bank supervisors has or will enter into with any
of those bank holding companies.
If necessary, this information will be considered Protected Information, subject to
the Panel’s Protocols for the Protection of Potentially Protected Documents Produced, or
Whose Contents are Disclosed, to the Congressional Oversight Panel.
The information sought by this letter is necessary for the Congressional Oversight
Panel to carry out section 125 of EESA. This information request is made pursuant to
section 125(e)(3) of that Act.
I would be happy to answer any questions about this letter that you may have. If
you would prefer, a member of your staff can contact the Panel’s Executive Director,
Naomi Baum, to discuss any such questions. Ms. Baum’s telephone number is XXX
XXXXXXXXX.
Sincerely,
Elizabeth Warren
Chair
Congressional Oversight Panel
2
APPENDIX II: LETTER FROM SECRETARY TIMOTHY
GEITHNER TO CHAIR ELIZABETH WARREN, RE:
CONFIDENTIAL MEMORANDA, DATED AUGUST 12,
2009
219

report

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